Chapter 9. Non-Complying Structures and Non-Conforming Uses

Chapter 9. Non-complying Structures and Non- conforming Uses

9.1 Purpose

This chapter regulates the continued existence of legally established non-conforming uses and non-complying structures as defined in Chapter 2. While legally established non-conforming uses and non-complying structures may continue, and repairs, maintenance and improvements as permitted in this chapter may be made, it is the town’s intent to limit changes that would increase the discrepancy between existing conditions and the development standards outlined in the current Rockville Land Use code. All applications will be reviewed to ensure that proposed repair, maintenance and/or changes would reduce the degree of non-conformity and/or non- compliance.

9.2 Determination of Lawful Non-complying or Non-conforming Status

A. The property owner bears the burden of establishing that any non-conforming use or non-complying structure or lot lawfully exists. To establish lawful existence the Town will require:

1) documentation that clearly establishes that the non-complying structure or lot and/or the non-conforming use in question legally existed prior to the adoption of language in the Land Use Code with which it now conflicts, including any required approval, permitting, or renewal process.

2) documentation that the non-conforming use in question has been continuously utilized, or that the non-complying structure has not been abandoned (as defined in Chapter 2) since the land use ordinance governing the land changed.

B. Documentation provided by the property owner to establish the legal existence of a non-complying structure or a non-conforming use must be factual and substantiated by documentation such as tax records, plat maps, old zoning codes, minutes of meetings where a use or structure was approved, copies of Town findings, permits, affidavits from current or previous Town officials, receipts of garbage removal, telephone, sewer and power bills, payments for services rendered, a series of dated photos, and so forth.

C. Based on documentation provided by the property owner, the Planning Commission shall determine the non-conforming or non-complying status of properties. A Planning Commission decision may be appealed to the Town Council, acting as the Appeal Authority, within ten (10) calendar days of their written decision.

Chapter 9 Page 1 of 6 Amended 04-11-2012 9.3 Authority to Continue

Except as provided in this section:

A. A lawful non-conforming use, existing at the time this ordinance became effective, may be continued by the current or future property owner on the parcel of land upon which the non-conforming use has historically existed provided 1) the use is assumed within a period of one year after the use became non-conforming; 2) the use has not changed from what was originally intended and 3) no alterations that enlarge or expand any structures housing the use are made for the purpose of expanding the use.

B. A non-complying structure that was lawfully constructed with a permit prior to revisions of this code may be occupied by the current or future property owner on the parcel of land upon which the non-complying structure historically existed provided 1) the structure is occupied by a use for which the structure was originally designed or intended and 2) provided the structure is occupied within a period of one year after the use became non-conforming by a use for which the building was designed or intended.

9.4 Abandonment

A. Any party claiming that a non-conforming use or non-complying structure has been abandoned shall have the burden of establishing the abandonment.

B. Abandonment may be presumed to have occurred if:

1) a majority of the primary structure associated with the non-conforming use has been voluntarily demolished without prior written agreement with the Town regarding an extension of the non-conforming use;

2) the non-conforming use has been discontinued for a minimum of one (1) year (twelve consecutive months) whether or not it was the owner’s intent to discontinue the use, or

3) the non-conforming use has been changed to something other than its original legal non-conforming state; or

4) the primary structure associated with the non-conforming use remains vacant for a period of one (1) year (twelve consecutive months) whether or not it was the owner’s intent to abandon the primary structure associated with the non-conforming use.

5) the non-complying structure remains vacant for a period of one (1) year (twelve consecutive months) whether or not it was the owner’s intent to abandon the structure.

6) the non-complying structure is allowed to deteriorate to a condition that renders it uninhabitable as determined by a Building Inspector, Fire Marshal, Public Health and Safety Officer or other appropriate authority.

Chapter 9 Page 2 of 6 Amended 04-11-2012 7) the owner has changed the structure to something other than it’s original legal non-complying state.

C. Any non-conforming use or non-complying structure that is determined by the Town to be abandoned shall not thereafter be re-established or resumed. Any subsequent use of the building, structure or land must conform to the current regulations governing the zone in which it is located.

D. The property owner may rebut the presumption of abandonment under Subsection 9.4 (B), and shall have the burden of establishing that any claimed abandonment under Subsection 9.4 (B) has not in fact occurred.

Data provided by the property owner to establish that abandonment has not occurred must be factual and substantiated by documentation covering the time period in question, such as dated paid receipts of maintenance, garbage removal, telephone, water, sewer, or power bills, minutes of meetings, copies of Town findings, permits or letters, affidavits from current or previous Town officials, or other documentation deemed relevant by the Planning Commission.

9.5 Restoration of Damaged Buildings

A. A non-complying building or structure or a or structure occupied by a non- conforming use which is damaged by fire, flood, wind, earthquake or other calamity may be restored and the occupancy or use of the building, structure, or part thereof, which existed at the time the damage or destruction occurred, may be continued or resumed provided the structure or use has not been abandoned and that the restoration is started within a period of one (1) year from the date the damage occurred and is diligently pursued to completion.

B. The Town may prohibit the reconstruction or restoration of a non-complying structure or terminate the non-conforming use of a structure if:

1) the structure is allowed to deteriorate to a condition that renders it uninhabitable and the property owner has not repaired or restored the structure within six months after receiving written notice informing him/her that the structure has been deemed uninhabitable by a Building Inspector, Fire Marshal, Public Health and Safety Officer or other appropriate authority and that the legal status of the non-complying structure or non-conforming use will be lost if not repaired within six months from the date of the written notice.

2) the property owner has voluntarily demolished a majority of the non- complying structure of the building that houses a non-conforming use.

C. A building permit for any reconstruction/restoration work is required.

9.6 Maintenance and Repair of a Structure Occupied by a Non-conforming Use

A structure occupied by a lawful non-conforming use may be maintained and repaired at a routine level within the existing footprint provided the degree of non-conformity is not increased and a new non-conformity is not created. A structure occupied by a lawful non-conforming use

Chapter 9 Page 3 of 6 Amended 04-11-2012 shall not be altered, expanded or enlarged in any manner for the prupose of expanding the non- conforming use.

9.7 Extension of a Non-conforming Use

A lawful non-conforming use may be extended throughout the same building provided no structural alteration of the building is proposed or made for the purpose of the extension.

9.8 Maintenance, Repair, Alteration and Expansion of a Non-complying Structure

A lawful non-complying structure may be maintained and repaired at a routine level and may be altered or enlarged in a way that does not increase the degree of non-conformity and/or create a new non-conformity and provided the proposed alterations or enlargements conform to all regulations of the zone in which the non-complying structure is located.

For the purposes of this chapter, the addition of a solar energy device to a building is not considered a structural alteration and therefore is allowed.

9.9 Alterations Where Parking is Insufficient

A no-complying building or structure lacking sufficient parking space for motorized vehicles as required by Chapter 10 of the Rockville Land Use Code may be altered or enlarged provided parking for the entire property is brought into compliance with the requirements of Chapter 10 as part of the construction process and provided that all proposed alterations or enlargements conform to all regulations of the zone in which the non-complying structure is located.

9.10 Change of Use

The non-conforming use of a building or land or a non-complying structure shall not be changed except to a conforming use or a complying state. When such a change is made, the use shall not be changed back to a non-conforming use or a non-complying state.

9.11 Non-conforming Use of Land

The legally established non-conforming use of land existing at the time this ordinance became effective may be continued, provided that;

A. no such non-conforming use of land shall in any way be expanded or extended to adjoining property; and

B. no such non-conforming use shall be expanded or extended outside the structures or other delineated areas associated with the original legal use.

9.12 Amortization

The following non-conforming structures and uses shall be amortized over a period not exceeding the following time lines effective from the date of the adoption of this Ordinance:

A. The Town may remove any non-conforming uses or non-complying structures if the landowner has not corrected the violation within 60 days of written notification. Any costs incurred by the Town in doing so shall be billed to the owner of the property.

Chapter 9 Page 4 of 6 Amended 04-11-2012 B. Non-conforming signs shall be removed from any zone in which said signs are non- conforming within one (1) year.

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