Non-Conformance

§ 113 Non-Conformance

[Amended October 21, 2009]

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 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 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. [Amended 5-3-2022 by Ord. No. 2022-04; 4-17-2024 by Ord. No. 2024-11]

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 or received the appropriate relief from the permitting authority to create a substandard lot.

2. Notwithstanding the failure of a single substandard lot of record or contiguous lots of record to meet the dimensional and/or quantitative requirements of this zoning ordinance, a substandard lot of record shall not be required to seek any zoning relief based solely on the failure to meet minimum lot size requirements of the district in which such lot is located. The setback, frontage, and/or lot width requirements for a structure under this section shall be reduced and the maximum building coverage requirements shall be increased by the same proportion as the lot area of the substandard lot is to the minimum lot area requirement of the zoning district in which the lot is located. All proposals exceeding such reduced requirements shall proceed with a modification request under Section 705 or a dimensional variance request under Section 706, whichever is applicable.

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, when combined, do not constitute sufficient area and dimension to meet the applicable area and dimensional requirements for more than one lot, meaning two or more fully conforming lots, then all the lots shall be combined to create a single lot only. Such combined lots may not be sold separately.

a. Contiguous substandard lots of record shall not be combined if both substandard lot already supports a principal use. When one substandard lot is developed with a principle use and a contiguous substandard lot is undeveloped with a principal use, they shall merge under this provision.

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)

c. The merger of lots shall not be required when the substandard lot of record has an area equal to or greater than the area of fifty percent (50%) of the lots within two hundred (200) feet of the subject lot, as confirmed by the Zoning Official through the submission of a Compilation Survey of the property prepared by a Rhode Island Registered Professional Land Surveyor.