The Nelson County Planning Commission spent much of its first meeting of the new decade last week debating regulations pertaining to nonconforming uses, structures and lots.

Dylan Bishop, Nelson’s director of planning and zoning, is working on a planned amendment to the county’s zoning ordinance to modify and add language for nonconforming properties, which are declared by county officials as inconsistent with the character of their zoning districts. The intent of the ordinance is to permit such properties as they continue but not to encourage their survival or permit their uses as grounds for adding other structures or uses prohibited elsewhere within the same district.

Bishop, during the commission’s Jan. 22 meeting, discussed a planned option where a nonconforming structure may be used only “as the then existing or a more restricted use continues and such use is not discouraged for more than two years, so as long as the buildings or structures are maintained in their then structural condition ...”

The measure allows such structures to be used for the grandfathered use or a more restricted use as long as it is not continued for more than two years, Bishop said.

One potential issue she referred to is “use creep,” where a landowner obtains a determination that a proposed new use is less intensive but later evolves into a more intensive use to get under the regulatory wire. An example she mentioned is a single-family dwelling that is nonconforming to the zoning ordinance becoming a bed-and-breakfast operation.

Another drawback is the county’s zoning administrator is required to make a subjective judgment call as to what makes a more restricted use is, Bishop said, adding a way to address that is to collaborate with the county’s building official regarding intensity of land uses.

The planned option also allows a nonconforming structure that hasn’t been used in more than two years to be used only for a more restricted use, which Bishop described as a “step-down” method. In the scenario if a property owner has not applied for an extension of grandfathering status and has passed the two-year mark the structure cannot go back to its previous use, but only a more restricted one, she said.

Bishop said if discontinued structures are single-family dwellings a solution is to indicate in the ordinance the residential occupancy is the most restricted use. “This would allow the owner of a nonconforming single-family dwelling that has not been occupied in over two years the opportunity to use the structure only as a single-family dwelling,” Bishop wrote in a memo to commissioners.

After much discussion, commissioners decided not to move forward with a proposed language addition in a section on nonconforming uses and allowing them to expand or enlarge by no more than 50% of the area occupied by such use.

Vice Chairman Charles Amante said if the goal is to for nonconforming properties to “slowly fade away” then he questions why they would be allowed to expand.

“Why would we expand a nonconforming use if we’re trying to weed it out eventually?” West District Commissioner Michael Harman asked during the discussion.

“I think it’s a judgment call on your part,” Bishop said. “... The other side of the coin is we’re not out to get anyone or make anyone fail. It’s a gray line.”

Central District Philippa Proulx said many cases of properties not conforming to zoning districts is because those uses, structures and lots predate county zoning that was established more than 40 years ago.

Bishop said when she started as the county’s planning and zoning director half a year ago she learned nonconforming uses and structures are areas that need addressing in the zoning ordinance.

A public hearing is expected to be held in upcoming months on the proposed zoning amendment.

Reach Justin Faulconer at (434) 385-5551.

Reach Justin Faulconer at (434) 385-5551.

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