When a zoning ordinance is adopted, it is recognized that there are properties within the City that are not in compliance. Such uses are permitted because they commenced at a point in time when the use was either permitted or simply not regulated. For example, someone may have livestock in an area that is re-zoned for single-family homes and the new zoning district prohibits livestock as a permitted use. Anyone who can establish that they were legally using the property for keeping livestock at the time of the ordinance was adopted is considered legally non-conforming.
In order to establish a legally non-conforming use, also commonly referred to as "grandfather status," you must submit evidence showing each of the following:
- That the use was lawful when commenced. This means that when first started, the use was listed as a permitted use under applicable laws in effect at the time. A use that was unlawful when started cannot acquire a lawful non-conforming status.
- That the use was permitted under the Chesapeake Zoning Ordinance when commenced or that the use was started prior to the adoption of the Chesapeake Zoning Ordinance on May 27, 1969. If the use was begun prior to May 27, 1969, you also need to show that the use was permitted under any other zoning regulations in effect at the time (such as the Norfolk County Zoning Ordinance). A use which was commenced in violation of any zoning ordinance cannot acquire a lawful non-conforming status".
- That the use has been continuous and without interruption since commenced. If the use was at any time abandoned or discontinued for two consecutive years or more, then the non-conforming use is lost.
- That the use is now conducted on the same property and in the same general area as when first commenced. Moving a use to another parcel or expanding the area in which the use is conducted can mean that you have lost any status you might have once had.
- That the use is now conducted in the same manner and scope as when first commenced.
'Grandfather status' may be lost if you have at any time:
- Changed the type of use conducted on the property
- Added uses to the original use
- Expanded the nature or scope of the use
You will need to submit affidavits from individuals familiar with the use of your property as proof that the requirements set out above have been met. Affidavits must be under oath and must be based on the personal observations of the individual making the affidavit. Additionally, affidavits must include the following to be of any value:
- The name and address of the person making the affidavit.
- A description of the property at issue.
- A statement as to how long the person making the affidavit has been familiar with the property.
- A statement describing how the property has been used and how long it has been put to this use.
- A statement that the use has been continuous and uninterrupted throughout the time period the person making affidavit has observed the property. If the use was discontinued at any time, the date the use was discontinued and the date it was resumed must be included in the affidavit.
Depending on the circumstances of each case, the Department of Development and Permits, Zoning Administration may also require the additional statements be included in an affidavit. A zoning determination fee of $100 will be required.