Barnstable City Zoning Code
ARTICLE VIII
Nonconformities
§ 240-90 Intent.
It is the intent of this section to protect property rights of owners of preexisting legally created nonconforming lots, uses and buildings or structures and to provide regulation of changes or expansion of preexisting nonconforming structures, building and uses.
§ 240-91 Nonconforming lot.
A.
Separate lot exemption. Any increase in area, frontage, width, yard or depth requirement of this chapter shall not apply to a lot for single- or two-family residential use which at the time of recording or endorsement:
(1)
Was not held in common ownership with any adjoining land; and
(2)
Had a minimum of 5,000 square feet of area and 50 feet of frontage or the minimum frontage requirement for the zoning district in which it is located; and
(3)
Conformed to the existing zoning if any when legally created; and
(4)
Was separately owned at the time of every zoning change which made it nonconforming.
B.
Common lot protection.
(1)
Any increase in the area, frontage, width, yard or depth requirement of this chapter shall not apply for a period of five years from the effective date of the change, to a lot for single- or two-family residential use that:
(a)
Is held in common ownership with not more than two adjoining lots; and
(b)
Had a minimum of 7,500 square feet in area and 75 feet of frontage or the minimum frontage requirement for the zoning district in which it is located; and
(c)
Was recorded or endorsed on a plan that conformed to zoning when legally created; and
(d)
Conformed to applicable zoning requirements as of January 1, 1976.
C.
The protection afforded by Subsection B shall become vested upon the sale or transfer of the lot so protected into ownership separate from that of adjoining lots or the building thereon of a residence.
[Amended 1-20-2005 by Order No. 2005-039]
D.
Approval-not-required plan protection. Any change in uses permitted under this chapter shall not apply to any lot created by a plan endorsed by the Planning Board as a plan not requiring approval under the Subdivision Control Law for such period of three years from the date of endorsement, as provided by MGL Ch. 40A, § 6.
E.
Subdivision plan protection. Any change in this chapter shall not apply to land shown on a plan under the Subdivision Control Law by a duly submitted and endorsed definitive subdivision plan, or a preliminary plan followed within seven months by a definitive plan, for such period of eight years from the date of endorsement, as provided by MGL Ch. 40A, § 6. Any legally created lot with a recorded release from covenant of the Planning Board that has been sold or transferred into separate ownership and control from any adjoining lots within eight years from the endorsement of the original subdivision plan shall be exempt from any dimensional or bulk zoning changes and shall not lose its status as a single buildable lot under zoning.
F.
Merged lots. Except as otherwise provided herein, lawfully nonconforming lots that are adjoining and held in common ownership, or under the control of the same owner, shall be treated so as to conform so far as possible with the minimum area requirement of the zoning district in which they are located. No lot so merged, or portion thereof, may be changed or transferred in any manner that will increase the degree of nonconformity unless a special permit has first been obtained from the Zoning Board of Appeals. No such special permit may create any additional buildable lot(s).
G.
Resource Protection Overlay District.
[Amended 10-26-2000]
(1)
Any increase in area, frontage, width, yard or depth requirements of the Resource Protection Overlay District shall not apply to a lot for single- or two-family residential use which immediately prior to November 16, 2000, either:
(a)
Conformed to the applicable bulk requirements of this chapter immediately prior to November 16, 2000: or
(2)
This protection afforded by this subsection shall be permanent.
H.
Developed lot protection; demolition and rebuilding on nonconforming lots. Preexisting legal nonconforming lots which have been improved by the construction of a single- or two-family residence which conformed to all provisions of the zoning ordinance or bylaw at the time of construction shall be entitled to completely demolish the old residence and construct thereon a new residence in accordance with the following.
[Added 11-18-2004 by Order No. 2005-025[1]]
(1)
As-of-right. The proposed demolition and rebuilding shall be permitted as-of-right on a preexisting legal nonconforming lot that contains a minimum of 10,000 square feet of contiguous upland, provided that the Building Commissioner determines that all of the following criteria are met:
(a)
The proposed new structure conforms to all current use and setback requirements of the zoning district it is located in;
(b)
The proposed construction conforms to the following requirements of lot coverage, floor area ratio and building height:
[1]
Lot coverage by all buildings and all structures shall not exceed 20% or the existing lot coverage, whichever is greater;
[2]
The floor area ratio shall not exceed 0.30 or the existing floor area ratio of the structure being demolished and rebuilt, whichever is greater; and
[3]
The building height, in feet, shall not exceed 30 feet to the highest plate and shall contain no more than 2 1/2 stories. The building height, in feet, shall be defined as the vertical distance from the average grade plane to plate.
(2)
As of right: merged lots each containing a minimum area of 43,560 square feet of contiguous upland. Where, immediately prior to November 16, 2000, two legally created contiguous lots each containing a minimum area of 43,560 square feet of contiguous upland were: (a) located in the Resource Protection Overlay District and (b) held in common ownership and (c) improved by the construction of one single-family residence, including accessory structures which occupied both lots, each said 43,560 square foot lot may be treated under these provisions as two separate buildable lots, provided that each of said lots conformed to all the bulk regulations of the zoning ordinance immediately prior to November 16, 2000, and as long as the other requirements of § 240-91H(1)(a) through (c) above are satisfied.
[Added 5-7-2009 by Order No. 2009-099]
(3)
By special permit. If the proposed demolition and rebuilding cannot satisfy the criteria established in Subsection H(1) above, then the Zoning Board of Appeals may allow the demolition and rebuilding by special permit, provided that the Board finds that:
(a)
If the proposed new dwelling does not comply with Subsection H(1)(a) above, then the proposed yard setbacks must be equal to or greater than the yard setbacks of the existing building; and
[Amended 2-17-2005 by Order No. 2005-058]
(c)
The proposed new dwelling would not be substantially more detrimental to the neighborhood than the existing dwelling.
(d)
This section shall only apply to Subsection H(2) to the extent that the proposed demolition and rebuilding cannot satisfy the criteria established in Subsection H(1) above and shall not be available for relief from any of the other provisions of Subsection H(2).
[Added 5-7-2009 by Order No. 2009-099]
[1]
Editor's Note: This order also redesignated former Subsection H(2) as Subsection H(3).
§ 240-92 Nonconforming buildings or structures used as single- and two-family residences.
A preexisting nonconforming building or structure that is used as a single- or two-family residence may be physically altered or expanded only as follows:
A.
As of right. If the Building Commissioner finds that:
(1)
The proposed physical alteration or expansion does not in any way encroach into the setbacks in effect at the time of construction, provided that encroachments into a ten-foot rear or side yard setback and twenty-foot front yard setback shall be deemed to create an intensification requiring a special permit under Subsection B below; and
(2)
The proposed alteration or expansion conforms to the current height limitations of this chapter.
B.
By special permit. If the proposed alteration or expansion cannot satisfy the criteria established in Subsection A above, the Zoning Board of Appeals may allow the expansion by special permit, provided that the proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure.
§ 240-93 Nonconforming buildings or structures not used as single- or two-family dwellings.
A.
As of right.
(1)
The normal and customary repair and maintenance of a preexisting nonconforming building or structure not used as a single or two-family dwelling is permitted as of right.
(2)
The alteration and expansion of a preexisting nonconforming building or structure, housing a conforming use, is permitted as of right, provided that the alteration or expansion does not increase or intensify the degree of the preexisting nonconformity of the building or structure, and that the alteration or expansion conforms in all other respects with all applicable requirements of this chapter.
B.
By special permit. Alterations or expansions in a preexisting nonconforming building or structure that do not meet the provisions of Subsection A shall be permitted only by a special permit from the Zoning Board of Appeals. In granting such special permit, the Board must find that the proposed repairs, alterations and/or expansion are not substantially more detrimental to the surrounding neighborhood. If the building or structure houses a nonconforming use, the provisions of § 240-94 shall also apply.
§ 240-94 Nonconforming use.
[Amended 3-11-1999 by Order No. 99-056]
A preexisting nonconforming use shall be limited in the extent it may expand or intensify. A preexisting nonconforming use may be changed to a principal permitted use as of right. A preexisting nonconforming use may be changed to a conditional use by special permit as provided for within the zoning district in which it is located, or to another nonconforming use as provided for herein.
A.
Change of a nonconforming use to another nonconforming use. A preexisting nonconforming use may be changed to another nonconforming use only by special permit from the Zoning Board of Appeals. In granting a special permit for the change of a nonconforming use, the Board must find that the proposed nonconforming use is no more detrimental to the neighborhood and that all of the following requirements are met:
(1)
The applicant has received all necessary approvals from the Board of Health.
(2)
The proposed nonconforming use:
(a)
Requires no more parking than the previous use;
(b)
Does not generate more traffic than the previous use, as measured by the Institute of Transportation Engineers Trip Generation Handbook or other sources acceptable to the Zoning Board of Appeals, nor does it cause Town expenditures to address traffic mitigation measures;
(c)
Does not result in an increase of on-site and off-site noise, dust, and odors;
(d)
Does not result in an increase in the hours of operation or in the number of tenants or employees;
(e)
Does not expand the gross floor area of the nonconforming use, except as may be provided in § 240-93B, nor does it increase the number of nonconforming uses on a site;
(f)
Is on the same lot as occupied by the nonconforming use on the date it became nonconforming; and
(g)
Is not expanded beyond the zoning district in existence on the date it became nonconforming.
B.
Expansion of a preexisting nonconforming use. A preexisting nonconforming use shall not be expanded and/or intensified except by special permit from the Zoning Board of Appeals. In granting a special permit for expansion of a preexisting nonconforming use, the Board must find that the proposed expansion, and/or intensification will not be more detrimental to the neighborhood and that the following requirements are met:
(1)
Any proposed expansion of the use shall conform to the established setbacks for the zoning district in which it is located, or such greater setbacks as the Zoning Board of Appeals may require due to the nature of the use and its impact on the neighborhood and surrounding properties.
(2)
The proposed use and expansion is on the same lot as occupied by the nonconforming use on the date it became nonconforming.
(3)
The proposed new use is not expanded beyond the zoning district in existence on the date it became nonconforming.
(4)
At the discretion of the Zoning Board of Appeals, improvements may be required in order to reduce the impact on the neighborhood and surrounding properties including but not limited to the following:
(b)
The addition of off-street parking and loading facilities;
(c)
Improved pedestrian safety, traffic circulation and reduction in the number and/or width of curb cuts;
(e)
Accessory uses or structures to the principal nonconforming use may be required to be brought into substantial conformance with the present zoning.
§ 240-95 Reestablishment of damaged or destroyed nonconforming use, building or structure.
A.
The reestablishment of a lawful preexisting nonconforming use and/or building or structure which has been destroyed or damaged by fire, acts of nature or other catastrophe shall be permitted as of right, provided that the Building Commissioner has determined that all the following conditions are met:
(1)
The reconstruction or repair will not increase the gross floor area or height of the building or structure beyond that which previously existed, nor increase the footprint of the structure;
(2)
If the building's location on the lot is to be changed, it will change in a manner that will result in greater compliance with the bulk regulations established in the zoning district in which it is located; and
(3)
The reconstruction or repair will not constitute an expansion or intensification of any nonconforming use.
(4)
In the case of any use in which it would otherwise be required, the site plan review process has been followed.
B.
The preexisting nonconforming use and/or structure or building shall be discontinued unless a building permit has been applied for within two years from the date of damage or destruction, and construction is continuously pursued to completion.
§ 240-96 Variance situations.
Situations which exist pursuant to the duly authorized grant of a variance from the terms of this chapter as provided for in § 240-125B(3) and (5) shall not constitute nonconformities for the purposes of this chapter.
§ 240-97 Abandonment; nonuse.
Any lawful preexisting nonconforming use or building or structure or use of land which has been abandoned or not used for three years shall not thereafter be reestablished. This section shall not apply in cases of damage or destruction governed by § 240-95.