What is a nonconformity?
- A nonconformity is a structure or use that was lawful when established but does not conform to current zoning regulations.
What are some common nonconformities?
- Each zoning district in Harrisonburg includes standards that establish the maximum permitted occupancy for dwelling units. Because these standards have changed over time, some existing dwellings may be nonconforming with current occupancy regulations.
- Some older buildings were constructed before zoning regulations were adopted or when setback requirements differed from current standards. As a result, these buildings may be located closer to property lines than current regulations allow. Nonconforming setbacks may also result when the City acquires additional right-of-way or land for public projects, such as street-widening improvements.
- Since the 1960s, Harrisonburg has annexed substantial areas from Rockingham County. Because Rockingham County’s zoning and development regulations often differed from those of the City, some annexed properties did not comply with the City’s Zoning Ordinance at the time of annexation and became nonconforming.
- Many parking lots in the City were developed before current parking lot landscaping requirements were adopted. Although an expansion or substantial modification of a parking lot may trigger compliance with current landscaping standards, parking lots that remain in their existing size and configuration may continue as nonconforming.
How do I know if my structure or use is nonconforming?
- If you think your property may include a nonconforming use or structure, you can contact City staff for guidance. If the nonconforming status for your property has not been documented, you may need to provide records showing what existed, when it existed, and that it was lawful at that time it was established.
How does staff make a determination on a nonconformity?
- Once the requester provides documentation supporting a claim of nonconformity, a zoning technician or zoning specialist will review the materials against the applicable nonconforming-use and nonconforming-structure provisions in Article E of the Zoning Ordinance.
- If the documentation is sufficient to establish that the nonconformity was lawfully established and has been continuously maintained, staff will issue an official determination letter. The letter will summarize the supporting evidence, document the determination, and be provided to the requestor.
- If the documentation is insufficient to establish that the nonconformity was lawfully established and continuously maintained, the reviewer will contact the requester to determine whether additional documentation is available. This may occur when there are gaps in the documentation timeline or when the available sources are vague, incomplete, or of questionable reliability.
- If no additional documentation can be provided, staff will issue a letter documenting the determination that the nonconformity was either not established or was discontinued. This determination may result in a zoning violation that must be corrected.
- All zoning determination letters will explain the right to appeal the decision to the Board of Zoning Appeals within 30 days, as provided by the Code of Virginia. If no appeal is filed within the applicable 30-day period, the determination becomes final and is no longer subject to appeal.
- Virginia State Code Section 15.2-2204(H) requires that when any applicant requesting a written order, requirement, decision, or determination that is subject to appeal, where the applicant is not the owner of the property, notice of the request must be given to the owner of the property within 10 days of the request. Alternatively, the requesting applicant shall be required to give the owner such notice and to provide satisfactory evidence to the zoning administrator or other administrative officer that the notice has been given.
What records can help establish nonconforming status?
- Permits
- Site plans
- Plats
- Tax records
- Leases
- Utility records
- Photographs
- Deeds
- Surveys
- Affidavits from witnesses
- Any other dated documents that can establish the nonconformity.
*Staff will review relevant City records as part of this process.
When can a nonconformity continue?
- A nonconformity may continue only if:
- The nonconforming use has not discontinued for more than 2 years.
- The nonconforming use or structure has not been enlarged or extended since it became nonconforming.
- The nonconforming buildings and structures have been maintained in their existing structural condition.
What happens if a nonconforming use is expanded?
- If a nonconforming use is enlarged or extended beyond the size, character, or intensity it had when it became nonconforming, its nonconforming status is lost.
What happens if a nonconforming use changes or stops?
- If a nonconforming use is discontinued for more than 2 years, it cannot continue as a nonconforming use.
- If a nonconforming use is changed to a more restricted use for more than 2 years, the original nonconforming use is considered abandoned and cannot later be resumed.
Can I alter a building associated with a nonconforming use?
- A building or structure associated with a nonconforming use may not be structurally altered unless:
- A zoning nonconforming letter documents the existence and extent of the nonconforming use; and
- The alteration does not increase the square footage dedicated to that use.
- Any new square footage must be used only for uses currently permitted in the zoning district.
What if a nonconforming building or structure is damaged?
- If a nonconforming building or structure is damaged or destroyed by a natural disaster or other act of God, it may be repaired, rebuilt, or replaced as allowed by the zoning ordinance.
- In some cases, the structure may be restored to its original nonconforming condition. If it is not repaired, rebuilt, or replaced within 2 years, future work must comply with the zoning ordinance. In some cases, involving a federal disaster declaration, an additional 2 years may apply.