ARTICLE VI

SECTION 25.26 NON-CONFORMITY

A. Intent: It is the intent of these Regulations that non-conformities are not to be expanded, that they should be changed to conformity as quickly as the fair interest of the parties permit and that the existence of any existing non-conformity shall not in itself be considered grounds for the issuance of a variance for any other property.

B. Definition: For the purpose of these regulations, a non-conforming building or use is defined as any use, whether of a building or tract of land or both which does not conform to the regulations respecting permitted uses as set forth, in this regulation for the district in which it is situated, but which lawfully existed prior to the enactment of this Zoning Regulation or any revision or amendment thereto, and which is maintained after the effective date thereof, although it does not conform to the use regulations of the district in which is located.

C. Continuance: Any building or use lawfully existing under the provisions of the zoning regulations in effect at the time of the creation of said building or the establishment of said use, or prior to the establishment of any zoning regulation in the City of Derby, although not conforming with the provisions of the Regulation for the district in which it is situated, may be continued subject to compliance with the conditions set forth below. Similarly whenever a district shall be changed hereafter, the provisions of this regulation with regard to any building or uses lawfully existing at the time of the passage of this regulation shall apply subject to compliance with the conditions set forth below, to any building or use lawfully existing in such changed district at the time of the passage of such amendment.

D. Conditions Governing Non-Conforming Uses:

1. No building which is non-conforming with respect to any provisions of this regulation shall be altered or enlarged in such manner as to increase such non-conformance. The provisions of this paragraph shall not apply to any alteration which may be required by order of the Building Official to strengthen or restore a building or structure or any part thereof to a safe condition.

2. Any non-conforming building or non-conforming use, if changed to conform to the requirements of this regulation shall not thereafter be changed back to a non-conforming building or use.

3. Any non-conforming use, if discontinued, for whatever cause for six (6) months or longer, shall be deemed to be abandoned and shall not be resumed. Intent to resume a non-conforming use shall not confer the right to do so. (See Paragraph G below)

4. If any building, in which any non-conforming use is conducted or maintained, is hereafter removed, the subsequent use of the land on which such building was located and the subsequent location and use of any building thereon shall be in conformity to the regulations specified by the regulation for the district in which such land is located.

5. Any non-conforming use, if damaged or destroyed from any cause to the extent, as determined by the Building Official in consultation with the City Assessor, of over fifty (50) percent of the current replacement cost of such structure above the foundation shall not be rebuilt or restored for the continuance of a non-conforming use therein. Such building, if damaged to the extent, as determined by the Building Official of less than fifty (50) percent of the replacement cost of such structure above the foundations, may be restored in the same location provided: (a) it is not enlarged or extended; (b) it is made substantially to conform to the height and yard requirements applicable to the district in which it is located; (c) the Commission grants permission for the restoration and continuance thereof without the enlargement or extension of any previously existing non-conforming use therein subject to such additional limitations and safeguards as the Commission may deem necessary in the public interest for the protection of nearby conforming uses.

Application for a permit to build or restore the damaged portion of any building damaged or destroyed as set forth in the preceding paragraph shall be filed within three (3) months of the day of such damage, and shall be accompanied by plans for reconstruction which as to such portion, shall comply with the requirements set forth above. If such permit is issued, it shall lapse six (6) months thereafter unless reconstruction in accordance with the approved plans has been initiated.

6. A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, without the need of a variance, but must get a Zoning Certificate of Compliance from the Zoning Officer.

E. Repair: Nothing in this Section shall be deemed to prohibit work on any non-conforming building or other structure when required by law to protect the public health or safety and when ordered by the Fire Marshal or Director of Health, provided that such work does not increase the non-conformity. Nothing in this Section shall be deemed to prohibit work on ordinary repair and maintenance of a non-conforming building or other structure or replacement of existing materials with similar materials.

F. Moving: No non-conforming use of land shall be moved to another part of the lot or outside the lot, and no non-conforming use of a building or other structure shall be moved or extended to any part of the building or other structure not manifestly arranged and designed for such use at the time the use became non-conforming and no building or other structure containing a non-conforming use shall be moved, unless the result of any such move is to end the non-conformity. No non-conforming building or structure shall be moved unless the result of such moving is to reduce or eliminate its non-conformity.

G. Abandonment:

1. Any non-conforming use which has been abandoned shall not thereafter be re-established. Any structure or land, or structure and land in combination which was formerly devoted to a non-conforming use which has been abandoned, shall not again be devoted to any use other than those uses which are allowable in the Zoning District in which it is located.

2. The term abandonment, as used herein, shall mean the voluntary discontinuance of a use, when accompanied by an intent not to re-establish such use. Any one of the following shall constitute prima-facie evidence of intent-to-abandon:

a.) Any failure to take all necessary steps to resume the non-conforming use with reasonable dispatch in the circumstances, including advertising of the property for sale or for lease; or

b.) In the case of a non-conforming use of a structure or of a structure and land in combination, discontinuance of the non-conforming use for 6 consecutive months, or for a total of 18 months during any three year period; or

c.) In the case of land only, discontinuance of the non-conforming use for 30 consecutive days, or for a total of 3 months, during a one year period.

H. Change: No non-conforming use of land, building or other structure shall be changed to any use which is substantially different in nature and purpose from the former non-conforming use except such uses as are permitted as of right in the district in which they are to be located. No non-conforming use of land, building or other structure if once changed to conform or to more nearly conform to these Regulations shall thereafter be changed so as to be less conforming again. No non-conforming building or structure if once changed to conform or to more nearly conform to these Regulations shall thereafter be changed so as to be less conforming again.

I. Non-Conforming Lots: A permit may be issued for a permitted use on a lot which does not meet the standards for lot area and/or width of the particular district in which the lot is located if:

1. The lot was of legal size on the date it was created as a lot; and the owner of such lot owns no adjacent land available for combination with the lot to decrease or eliminate the non-conformity; (See Paragraph P below) and

2. The present owner or any prior owner did not illegally create this non-conforming lot; and all yard, coverage and other zoning requirements can be met; however, in those instances where the lot area or shape prevent conformance with one or more yard requirements, the requirement for that yard shall be the same as the most restrictive district to which the lot area most nearly conforms; and

3. The owner or his agent presents satisfactory evidence of compliance with this section.

J. Construction in Progress: Nothing in these Regulations shall require any change in the plans, construction, or designated use of any building or part thereof, as approved in a building and zoning permit, the construction of which shall be lawfully in progress at the time of promulgation of these regulations, provided such construction shall be completed within one year of the date of these regulations.

K. Title: No change of title, possession or right of possession shall be deemed to affect right to continue a non-conforming use, building or other structure.

L. Off Street Parking and Loading: Any use, building or structure, which does not conform to one or more of the provisions of Article V, Section 25-19, Off-Street Parking and Loading shall continue to conform to such provisions to the extent that it conforms on the effective date of such section. Any use of land, buildings or other structures which does not conform to one or more of the provisions of Article V, Section 25-19, shall not be changed to a use which would need additional off-street parking and loading spaces to comply with the provisions of Article V, Section 25-19 unless such spaces are provided as required for the new use under Article V, Section 25-19.

M. Signs: Signs of a size or type not permitted in the zone in which they are situated, that are improperly located or illuminated, or that are non-conforming in any other way shall be considered non-conforming structures under this Section; and any increase in size or illumination of such signs shall be deemed to be an enlargement or extension producing an increase in non-conformity.

N. Special Exception Provisions Not Non-Conforming: Any use which is allowed in a district as a Special Exception shall not be deemed a non-conforming use but shall, without further action, be deemed a conforming use in such district.

O. Required Termination of Non-Conforming Uses: Each of the non-conforming uses specified in this Section is deemed sufficiently objectionable, undesirable, and out of character in the district in which such use is located as to depreciate the value of other property and uses permitted in the district, and blight the proper and orderly development and general welfare of such district and the community, to the point that each such non-conforming use must be, and shall be, terminated on or before the expiration of the specified period of time after the effective date of this regulation; which period of time, is specified for the purpose of permitting the amortization of the remaining value, if any, of such use.

In any Residence District, any non-conforming use of vacant land, including but not limited to such uses as a parking lot, trailer, or open storage yard for materials or equipment, may be continued for three (3) years after the effective date of this regulation, provided that, after the expiration of that period, such non-conforming use shall be terminated. Any such use that was made non-conforming by previous zoning shall be governed by the provisions of said previous regulation.

P. Adjoining Non-Conforming Lots: If one or more adjoining lots of record, one or more of which fails to meet the minimum requirements of these Regulations with regard to lot area, shape or frontage and if the lots have continuous frontage, are in single ownership at any time after the application of the provisions of these Regulations to such lots, and if taken together would form one or more lots meeting the requirements of these Regulations with regard to lot area, shape and frontage; such lots shall be combined so as to no longer be considered non-conforming and must be used in such a fashion so as to be in compliance with the lot area, shape and frontage requirements regardless of subsequent changes of ownership.