Allentown City Zoning Code
ARTICLE 13
Nonconformities
§ 660-124 General.
A.
Applicability. The regulations of this article govern nonconformities, which are lots, uses, buildings, signs, and other improvements that were lawfully established but, because of the adoption of new or amended regulations, no longer comply with one or more provisions of this chapter.
B.
Purpose. Occasionally, lots, uses, buildings, signs, and other improvements that were lawfully established (i.e., in compliance with all regulations in effect at the time of their establishment) are made nonconforming because of changes in the zoning regulations that apply to the subject property (e.g., through Zoning Map changes or amendments to the text of this chapter). The regulations of this article are intended to clarify the effect of this "nonconforming" status and avoid confusion with "illegal" uses and activities (i.e., those established in violation of applicable zoning regulations). The regulations of this article are also intended to:
(1)
Recognize the interests of landowners in continuing to use their property for uses and activities that were lawfully established;
(2)
Promote maintenance, reuse, and rehabilitation of existing buildings; and
(3)
Place reasonable limits on nonconformities that have the potential to adversely affect surrounding properties.
C.
Governmental action. Any lot or building that is rendered nonconforming by the action of a governmental agency in opening, closing, widening, paving or improvement of any street or acquiring any right-of-way or any governmental condemnation is, absent any other reason for nonconformity, exempt from the nonconformity regulations of this article and will, for all purposes of this chapter, be considered to exist in the same condition as immediately before such governmental action.
D.
Authority to continue.
(1)
Any nonconformity that existed on the effective date specified in § 660-1C or any situation that becomes nonconforming upon adoption of any amendment to this chapter may be continued in accordance with the regulations of this article unless otherwise expressly stated.
(2)
Uses, lots and buildings that were not lawful when they were first established, or that changed in an unlawful manner, have no right to continue, and must be terminated or brought into conformance with all applicable provisions of this chapter.
E.
Determination of status.
(1)
The burden of proving that a situation has nonconforming status rests with the subject property owner.
(2)
The Zoning Officer is authorized to determine whether adequate proof of nonconforming status has been provided by the subject property owner.
(3)
Appeals of the Zoning Officer's decision on nonconforming status determinations may be appealed in accordance with the appeal procedures of § 660-121.
F.
Repairs and maintenance.
(1)
Nonconformities must be maintained to be safe and in good repair.
(2)
Repairs and normal maintenance that do not increase the extent of nonconformity and that are necessary to keep a nonconformity in sound condition are permitted unless otherwise expressly prohibited by this chapter.
(3)
Nothing in this article is intended to prevent nonconformities from being structurally strengthened or restored to a safe condition in accordance with an order from a duly authorized City official.
G.
Change of tenancy or ownership. Nonconforming status runs with the land and is not affected merely by change of ownership or possession or by right of possession of property.
§ 660-125 Nonconforming lots.
A.
Description. A nonconforming lot is a lawfully created lot that does not comply with currently applicable minimum lot area or minimum lot width regulations of the zone in which the lot is located.
B.
Use of nonconforming lots.
(1)
Except as expressly stated in Subsection B(2) (below), a single nonconforming lot may be used in accordance with the use regulations of the subject zone, and buildings may be erected on such a nonconforming lot, subject to compliance with all other applicable regulations of this chapter.
(2)
If two nonconforming lots are contiguous and under common ownership, and at least one of the lots does not include a principal building, then the two lots will be considered to be merged, and may not be separately sold or separately developed or built upon.
§ 660-126 Nonconforming uses.
A.
Description. A nonconforming use is a land use that was lawfully established in accordance with use regulations in effect at the time of its establishment but that is no longer allowed by the use regulations of the zone in which the use is now located. Nonconforming uses expressly include the following:
(1)
Lawfully established uses that are not allowed in the zone in which they are located;
(2)
Lawfully established uses that do not comply with supplemental use (use-specific) regulations that apply to the subject use type; and
(3)
Lawfully established uses that do not comply with applicable regulations governing the allowed number and location of dwelling units within the subject building type.
B.
Change of use.
(1)
Authorization by Zoning Officer. The Zoning Officer is authorized to issue a permit for a change from one nonconforming use to another nonconforming use, provided that all of the following conditions are met:
(a)
The same general type of use is involved (such as from one retail use to another retail use, or from one personal service use to another personal service use);
(b)
The operator of the new use agrees in writing as a condition of the permit to abide by any applicable conditions that were established for the previous use of the property;
(c)
The new use involves similar or less intensive characteristics compared to the previous use, such as hours and manner of operation, types of merchandise or service, and waste generation; and
(d)
The new use does not involve the sale of alcohol unless the previous use also involved the sale of alcohol in a similar manner.
(2)
Authorization by Zoning Hearing Board. The Zoning Hearing Board is authorized to approve a special exception, in accordance with the procedures of § 660-115, allowing a nonconforming use to be changed to another nonconforming use upon determining that the proposed new use will be no more detrimental to its neighborhood and surroundings than the use it is to replace. In making such determination, the Zoning Hearing Board may consider the following factors, among others: traffic generated; traffic safety; nuisance characteristics, such as emission of noise, dust, odors and smoke; creation of vibrations and fire hazards; waste generation; storage characteristics; public health and safety hazards; and the hours and manner of operation.
(3)
Hours of operation. Notwithstanding any provisions to the contrary, special exception approval from the Zoning Hearing Board is required if a proposed change of a nonconforming use is proposed to be open to the public during the hours between midnight and 6:00 a.m. in an MX-C or GX-C Zone or between 10:00 p.m. and 6:00 a.m. in any MX-N, GX-N, or N Zone. In considering such proposed special exception, the Zoning Hearing Board must consider whether the late night hours are likely to create nuisances and incompatibilities with nearby residential uses, considering the type of proposed use and its location. In considering the special exception approval, the Zoning Hearing Board may further restrict the hours of operation beyond the limits stated herein.
C.
Expansion of use.
(1)
General. A nonconforming use and a building occupied by a nonconforming use may be expanded, only if the following conditions are met:
(a)
Special exception approval is required for expansion of a nonconforming use.
(b)
The total building floor area or total land area occupied by the nonconforming use, whichever is more restrictive, may not be increased by greater than 50% beyond the area that existed at the time the use first became nonconforming.
[1]
The 50% maximum is measured in aggregate over the entire life of the nonconformity. For example, if a use became nonconforming in 1971, and was expanded by 20% in 1980, then only a cumulative 30% expansion is permitted after 1980.
[2]
These provisions apply regardless of whether the use is expanding within an existing building or an addition to an existing building.
(c)
Any expansion of a nonconforming use must meet all required setbacks and all other requirements of this chapter. No new nonconformity may be created.
(2)
Nonconforming junkyard or scrapyard. Notwithstanding any provision to the contrary, a nonconforming junkyard or scrapyard may not be expanded to occupy additional land area.
D.
Remodeling and improvements. A building in which a nonconforming use is located may be remodeled or otherwise improved as long as the remodeling or improvements do not violate other applicable regulations of this chapter.
E.
Movement. A nonconforming use may be moved in whole or in part to another location on the same lot only if the movement or relocation does not create additional or new nonconformities.
F.
Loss of nonconforming status. If the area occupied by a nonconforming use becomes unoccupied or unused and remains unoccupied or is not used by the nonconforming use during any continuous period of 12 months or more, the use is presumed to be abandoned, unless the Zoning Hearing Board determines, based on evidence provided by the subject property owner, that the use was not abandoned. Once abandoned, such property or building may only be occupied by a use that conforms to this chapter. This twelve-month period is extended to 24 months for a lawful commercial nonconforming use in an N Zone.
§ 660-127 Nonconforming buildings and structures.
A.
Description.
(1)
Nonconforming building. A nonconforming building is any building that was lawfully established but no longer complies with applicable building siting, parking and accessory structure, height, roof, or facade regulations of Article 4 or applicable building design regulations of Article 7.
(2)
Nonconforming structure. A nonconforming structure is any structure, other than a building or a sign, that was lawfully established but no longer complies with applicable structure siting or height regulations.
B.
General. Nonconforming buildings and structures may remain, subject to the regulations of this section.
C.
Alterations and expansions.
(1)
General. Unless otherwise expressly stated in the nonconforming building and structure regulations of this section, alterations of nonconforming buildings and structures, including enlargements and expansions, are allowed only if the altered portion of the building or structure complies with applicable regulations and does not increase the extent of the existing nonconformity.
(2)
Side setbacks for house, twin house and rowhouse buildings. If an existing house building type, twin house building type, or rowhouse building type has a lawfully nonconforming side setback, additions may occur as of right to increase the building height or to extend other portions of the building into the nonconforming side setback, provided that:
(a)
The building may not be extended beyond the building's existing side setback;
(b)
No additional nonconformity may be created unless otherwise expressly stated herein;
(c)
All other requirements of this chapter must be met; and
(d)
An absolute minimum side setback of three feet must be maintained for any addition.
D.
Use. A nonconforming building may be used for any use allowed in the zone in which the building is located.
E.
Movement. A nonconforming building or structure may be moved to another location on the lot only if the movement or relocation eliminates or reduces the extent of nonconformity.
F.
Re-establishment.
(1)
A nonconforming building or structure that is destroyed or damaged by fire or other casualty or by act of God may be rebuilt or restored in a nonconforming manner only if the majority of the exterior walls are still structurally sound, except that a destroyed or damaged nonconforming house building type, twin house building type, or rowhouse building type may be reconstructed regardless of the amount of destruction provided that no new nonconformity is created or increased by the reconstruction.
(2)
When a nonconforming building or structure is permitted to be rebuilt or restored in a nonconforming manner, such permission may only be granted if all of the following conditions are met:
(a)
The building or structure is properly secured after the damage or destruction;
(b)
Work begins within 18 months after the date of damage or destruction, unless the Zoning Hearing Board grants a time extension for good cause; and
(c)
Work is diligently pursued to completion.
§ 660-128 Nonconforming signs.
See the nonconforming sign regulations of § 660-109.
§ 660-129 Nonconforming development features.
A.
Description. A nonconforming development feature is any aspect of a development, other than a nonconforming lot, nonconforming use, nonconforming building, or nonconforming sign, that was lawfully established in accordance with zoning regulations in effect at the time of its establishment but that no longer complies with one or more regulations of this chapter. One common example is a site that does not comply with current parking, landscaping, or screening requirements.
B.
General. Nonconforming development features must be brought into compliance with applicable Zoning Ordinance regulations when development or construction triggering compliance occurs. In other cases nonconforming development features may remain, but the nature and extent of such nonconforming development features may not be increased.
