Beverly City Zoning Code
ARTICLE XII
Nonconforming Situations
§ 300-73 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Those uses, lots, buildings, structures, parking spaces, loading spaces, signs, landscaping and other activities that are subject to the provisions of this chapter, which were not lawfully created after this chapter was adopted or after amendments to this chapter which are applicable to those situations were adopted, are in violation of this chapter and may be called "noncomplying situations."
In accordance with MGL c. 40A, § 7, a structure which has not been in compliance with this chapter, or with the conditions set forth in any special permit or variance affecting the structure, for a period of 10 years or more from the commencement of the violation may not be the subject of an enforcement action by the City to compel the removal, alteration, or relocation of such structure. Structures which qualify under MGL c. 40A, § 7, are considered to be nonconforming structures and are entitled to treatment as such as provided in this section.
Those uses, lots, buildings, structures, parking spaces, loading spaces, signs, landscaping and other activities that are now subject to the provisions of this chapter which were lawful before this chapter was adopted, or before amendments to this chapter which are applicable to the situation were adopted, and such situations do not now conform to the provisions of this chapter.
§ 300-74 Purpose.
The provisions of this article are intended to achieve the following purposes:
A.
To allow nonconforming situations to continue until they are discontinued or abandoned.
B.
To encourage change in nonconforming situations toward greater compliance with the provisions, objectives, and purposes stated in this chapter.
C.
To limit expansion of a nonconforming use, as measured either by the amount of floor space or land area used or by the volume of activity in the use; and to encourage the substitution of other uses, which may also be nonconforming, but which are more compatible with, and have fewer adverse impacts on, the surrounding area.
D.
To permit some expansion of nonconforming buildings, provided there are not demonstrable adverse impacts on adjoining properties.
E.
In the event of the partial destruction of a nonconforming situation, to permit the reconstruction of the nonconforming situation so that the owner and tenants, if any, are not subjected to substantial economic loss while, at the same time, seeking to achieve greater conformity with the provisions of this chapter and to reduce any adverse impacts on the surrounding area.
F.
To permit the treatment of nonconforming situations to be varied by the type of zoning district and the type of nonconformity; i.e., to have a different approach for uses, structures, parking or lots.
§ 300-75 Continuation of nonconforming situations; creation date.
A.
Continuation of nonconforming situations. A use, building, structure, parking space, loading bay, sign, landscaping or any other activity which is nonconforming, but not noncomplying, may be continued but may not be increased or expanded except as may be specifically authorized by this chapter. If a nonconforming situation is abandoned or terminated, as set forth below, it may not be resumed except in compliance with this chapter.
B.
Lawfully created. A use, building, structure, lot, parking space, loading bay, sign, landscaping or any other activity is considered to be lawfully created, with respect to zoning requirements, if:
(1)
It was in existence on February 23, 1939, when the Beverly Zoning Ordinance was originally adopted; or
(2)
Subsequent to February 23, 1939, it was permitted by right by the Beverly Zoning Ordinance and was in existence prior to the effective date of any amendment which renders it nonconforming, and, if required at the time of its creation, a building permit or certificate of occupancy was issued.
C.
Evidence of lawful creation. As the records of the Building/Inspection Department in earlier years are incomplete, the Building Inspector or his designee may accept such evidence of lawful creation for those years as he/she may deem to be adequate in lieu of official City records.
§ 300-76 Effect of special permits, findings and variances.
A.
A use, building, structure, lot, parking space, loading bay, sign, landscaping or any other activity which is not otherwise permitted by right and does not comply with this chapter due to the granting of a variance, a finding in accordance with MGL c. 40A, § 6, or a special permit is not a nonconforming situation, is not entitled to the treatments afforded by this chapter and is bound to the conditions of the special permit, finding or variance, as granted.
B.
In the case of a special permit, finding, or variance which is not entitled to treatment as a nonconforming situation, the Zoning Board of Appeals may grant an additional special permit, finding, or variance which has the effect of changing, extending or altering said special permit, finding, or variance, provided the Zoning Board of Appeals finds that:
(1)
Such change, extension, or alteration will not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood; and
(2)
The structure or use as changed, altered or extended will not depart further from the intent of this chapter than the prior use or degrees of use; and
(3)
Such structure or use is not increased in either building volume, footprint or area by more than 25% after July 12, 2011, unless the Zoning Board of Appeals finds that the proposed increase in volume, footprint or area improves the exterior architectural appearance of the structure, in which event building volume, footprint or area may be increased up to 50% after July 12, 2011.
§ 300-77 Reversion to nonconformity prohibited.
Once a use, building, structure, lot, parking space, loading space, sign, landscaping or any other activity which had been nonconforming is brought into conformity with this chapter, it shall not be permitted to revert to nonconformity. Once a use, building, structure, lot, parking space, loading bay, sign, landscaping or any other activity which is nonconforming is brought into closer conformity with this chapter (i.e., the amount or degree of nonconformity is reduced), it shall not be permitted to revert to nonconformity with the provisions of this chapter which is greater than the closest amount or degree of conformity which it has achieved.
§ 300-78 Changes resulting in noncompliance.
No lot upon which there is a building or for which a building permit is in force shall be subdivided or otherwise changed in area or shape, except through public acquisition by eminent domain, so as to result in a violation, applicable to either the lot or the building, of the dimensional and other applicable requirements of this chapter. A lot already nonconforming shall not be changed in area or shape so as to increase the degree of nonconformity with the requirements of this chapter; a nonconforming lot may be changed in area or shape to move closer to conformity with the requirements of this chapter. If land is subdivided, conveyed or otherwise transferred in violation hereof, no building permit, special permit, variance, finding, certificate of occupancy or approval of a plan under the Subdivision Control Law shall be issued with reference to said transferred land until both the lot retained and the newly created lot(s) meet the requirements of this chapter.
§ 300-79 Nonconformity resulting from public action.
If, as a result of public acquisition, a use, building, structure, lot, parking space, loading space, sign, landscaping or any other activity no longer complies with this chapter, it shall be considered to be nonconforming and entitled to the treatment afforded by this article, provided it was in compliance at the time of the public acquisition.
§ 300-80 Discontinuance or abandonment.
B.
In the administration of Subsection A(2) above, evidence of discontinuance or abandonment shall be:
(1)
Bringing the use, structure or other nonconformity into compliance with this chapter; or
(2)
Ceasing to be open to the public for the conduct of business for a period of six continuous months, and one or more of the following:
(a)
Removal of customary equipment or supplies for the operation of a use.
(b)
Disconnecting electrical, gas or other utility services.
(c)
Failure to provide for operation in colder weather, such as ceasing to heat the building at normal levels required by health regulations or failing to provide snow removal.
C.
In the event that the Director of Municipal Inspections or designee has evidence of discontinuance or abandonment, he/she shall communicate with the owner of record, by certified mail, inquiring as to the owner's intent and informing the owner of the potential loss in nonconforming status. Such owner shall be allowed a period of 30 days from the transmittal of such communication in which to respond and to take action.[2]
D.
Discontinuance or abandonment of a part of a nonconforming use, structure or situation shall not normally be considered to be evidence of discontinuance or abandonment of the whole unless that part which is discontinued or abandoned is the part which causes the nonconformity.
§ 300-81 Change of ownership, tenancy, or management.
The rights of a nonconforming use, structure, building, lot, parking space, loading bay, landscaping or other situation are not affected by a change in ownership, tenancy or management unless such ownership, tenancy or management is specifically a condition of the issuance of a permit.
§ 300-82 Nonconforming uses.
A.
A nonconforming use may be continued to the same degree and for the same purpose but may not be altered, expanded or extended except as permitted by this section. A nonconforming use shall be considered to be altered, expanded or extended if there is an increase in the net floor area, or an increase in the number of employees, or a substantial increase in the number of automobile or truck traffic trips generated by the use, or an increase in the hours of operation, or a change from seasonal to full-time operation, since the use first became nonconforming.
B.
A nonconforming use is limited to the lot on which it is located and cannot be relocated to another lot.
C.
Substitution of nonconforming use. The Zoning Board of Appeals (ZBA) may issue a special permit to allow a new use, not otherwise permitted by right in the zoning district in which the nonconforming use is located, to be substituted for the existing nonconforming use, subject to the condition that the new use is no less compatible with the zoning district in which the nonconforming use is located than the existing nonconforming use it replaces. In this context, "no less compatible" shall mean it complies with the criteria set forth in § 300-91B of this chapter.
§ 300-83 Nonconforming dwellings and buildings.
A.
One-family or two-family dwelling.
(1)
Building permit or special permit required.
(a)
An existing nonconforming one-family or two-family dwelling which is nonconforming with respect to a minimum yard setback may be enlarged or extended in any other direction in compliance with this chapter by up to 25% in either building volume, footprint or area after July 12, 2011, through the issuance of a building permit as provided in Article XIV.
(b)
An existing nonconforming one-family or two-family dwelling which is nonconforming with respect to a minimum yard setback may be enlarged or extended in any other direction in compliance with this chapter by more than 25% in either building volume, footprint or area after July 12, 2011, provided the ZBA grants a special permit in accordance with § 300-91B.
(2)
That part of an existing nonconforming dwelling which is nonconforming with respect to a minimum yard setback may be enlarged or extended in that yard, provided the ZBA grants a special permit and provided that the degree of nonconformity is not greater than 50% of the required minimum yard setback.
B.
Other than one- or two-family dwelling.
(1)
An existing nonconforming building, other than a one-family or two-family dwelling, which is nonconforming with respect to a minimum yard setback may be enlarged or extended in any other direction in compliance with this chapter by the issuance of a building permit, provided that such structure or use is not increased in either building volume, footprint or area by more than 25% after July 12, 2011, unless the Zoning Board of Appeals determines that the proposed increase in volume, footprint or area improves the exterior architectural appearance of the structure, in which event building volume, footprint or area may be increased up to 50% after July 12, 2011, provided all other uses, structures and activities on the lot comply fully with the requirements of this chapter.
(2)
An existing nonconforming building, other than a one-family or two-family dwelling which is nonconforming with respect to any zoning provision other than a minimum yard setback may not be enlarged or extended except by special permit from the ZBA.
C.
Noncomplying buildings.
(1)
If a building, or a part of a building, does not comply with the applicable dimensional standards other than minimum lot area or minimum lot frontage, or those that were in effect when it was constructed, and the building was constructed in accordance with a building permit issued by the City except for such dimensional noncompliance, it shall be considered to be a nonconforming building, and entitled to treatment as such, if the following conditions are met:
(2)
If a building, or a part of a building, does not comply with the applicable dimensional standards, other than minimum lot area or minimum lot frontage, or those that were in effect when it was constructed but the building was not constructed in accordance with a building permit duly issued or there is no evidence a building permit was issued, the ZBA may grant a special permit for the continued use of the building under the provisions of § 300-91.
§ 300-84 Nonconforming lots.
A lot which does not comply with the provisions of this chapter with respect to minimum lot area, minimum lot frontage, or minimum lot width or with the requirements then in effect at the time of recording or endorsement of the plan, whichever occurred first, may not be subdivided or otherwise changed in area or shape, except through public action, so as to be in violation of the provisions of this chapter. A lot already nonconforming with respect to those provisions shall not be changed in area or shape so as to increase the degree of noncompliance. A lot which is nonconforming with respect to those provisions may be changed to be made closer in compliance, but once brought closer into compliance, i.e., the amount or degree of nonconformity is reduced, it shall not be permitted to revert to a degree of noncompliance which is greater than the closest amount or degree of compliance which it has achieved.
§ 300-85 Nonconforming off-street parking and loading.
A.
Existing nonconforming parking spaces or loading space. Any off-street parking spaces or loading spaces in existence on the effective date of this chapter or thereafter established, which serve a building or use, may not be reduced in number or changed in location or design contrary to the requirements of Article X of this chapter so as to increase the degree of nonconformity with the requirements of that article.
(1)
If the use of an existing structure or lot which does not have sufficient parking or loading (including a use which has no off-street parking or loading) is changed to a different type of use for which a different number of parking spaces or loading spaces is required as set forth in Article X of this chapter and there is no increase in the net floor area, then the following rules shall apply:
(a)
If there is a net increase in the number of required parking spaces or loading space resulting from a change to an existing nonconforming situation, that net increase in required parking spaces or loading space as set forth in Article X of this chapter shall be provided unless the special permit granting authority for the respective zoning district shall grant a waiver from the requirement to provide additional parking spaces or loading space if it finds that one or more of the following criteria are met:
[1]
That the current parking and/or loading supply for the existing use is adequate to serve the expected parking demand of the nonconforming situation, as changed.
[2]
That sufficient parking or loading space exists on-street and/or in nearby public parking lots to meet the expected increase in parking supply needed for the nonconforming situation, as changed.
(2)
If it is proposed to increase the net floor area of a building, whether by addition to the exterior of the building or by internal reconstruction, and the building does not have sufficient off-street parking or loading, full compliance with Article X of this chapter for the entire building shall be a condition of the issuance of a building permit for the construction of the increase of net floor area unless the special permit granting authority shall grant a waiver in accordance with Subsection A(1)(a).
(3)
Parking spaces or loading spaces in existence as of the date of any zoning or other ordinance change that renders existing parking spaces or loading space nonconforming, which serve existing uses, may be counted toward the number needed for the increase in the net floor area of an existing building or the change from one type of use to another, but not for a new building, even if they do not conform to the requirements of Article X, provided they comply to the maximum extent practicable. An applicant seeking such credit for existing parking spaces or loading space shall first submit an off-street parking and loading plan certified by a registered land surveyor or professional engineer showing the number and dimensions of existing parking spaces and/or loading space, the type of surfacing material, as well as documentation as to the spaces' existence prior to the adoption of the ordinance change which rendered the parking situation nonconforming. If the existing paved area is not marked off into parking spaces or loading space, such spaces or loading space, complying with §§ 300-63 and 300-64, shall be delineated on the plan. To qualify, an existing parking space or loading space shall be entirely on the same lot as the use it serves, or on a contiguous lot, or on a nearby lot provided that it is located within 500 feet of the main entrance to the use it serves.
B.
Parking and loading requirements for a building destroyed, damaged or demolished.
(1)
If a building for which sufficient off-street parking or loading is not provided is destroyed, damaged or demolished by the owner, the building may be reconstructed or replaced if otherwise permitted by this chapter, without providing additional parking spaces or loading space, provided the new use is the same type and degree of use (see § 300-59) as the use before the destruction, damage or demolition, or is a type of use that requires the same or fewer parking spaces or loading space. If parking spaces and/or loading spaces were provided before the destruction, damage or demolition, at least the same number of spaces and/or loading spaces shall be provided.
(2)
If the reconstructed building will be occupied by a different use, for which a greater number of parking spaces or loading space is required, full compliance with Article X of this chapter for the entire building shall be a condition of the issuance of any building permit for the reconstruction or replacement of the building.
(3)
If the building is reconstructed with more net floor area than previously existed, full compliance with Article X of this chapter will be required unless:
(a)
The special permit granting authority for the zoning district in which the property is located grants a waiver of the parking requirement for the additional net floor area in accordance with Subsection A(1)(a); and
(b)
At least the same number of parking spaces and/or loading space that was provided before the destruction, damage, or demolition are provided.
§ 300-86 Repair and reconstruction.
A.
Continuance; repairs. Routine maintenance and repairs are permitted to a nonconforming structure, building, sign, parking space, loading space, landscaping, or other nonconforming situation to maintain it in sound condition and presentable appearance. With respect to signs, the term "routine maintenance and repairs" shall not include any changes to colors, text, lighting mechanism, or location. Such activities must be approved by the Design Review Board and may be subject to the issuance of a permit by the Building Inspector.
B.
Reconstruction after destruction (by right). Any nonconforming use, structure, building, sign, parking space, loading space, landscaping, or other nonconforming situation which is destroyed or damaged by explosion, collapse, fire, storm, natural disaster or other catastrophic event which is beyond the control of the owner, to the extent of not more than 50% of its replacement cost, as determined by the Director of Municipal Inspections or designee, may be reconstructed through the issuance of a building permit, provided that:[1]
(1)
Such structure or use is not increased in volume, footprint, or area by more than 25% in either building volume, footprint, or area; and
(2)
The reconstruction conforms to the current requirements of this chapter to the maximum extent practicable in the opinion of the Director of Municipal Inspections or designee. In this context, "maximum extent practicable" shall consider extreme site conditions, such as steep grades, the presence of ledge or other unsuitable soil conditions, or the shape and configuration of the lot.
C.
Reconstruction after destruction (by special permit). The ZBA may grant a special permit for the reconstruction of a nonconforming use, structure, building, sign, parking space or loading space or other nonconforming situation which is destroyed or damaged by explosion, collapse, fire, storm, natural disaster or other catastrophic event which is beyond the control of the owner, to the extent of more than 50% of its replacement cost, as determined by the Director of Municipal Inspections or designee, or by the proposed voluntary action of the owner to demolish, in whole or in part, provided the ZBA determines that:[2]
§ 300-87 Vesting of rights during adoption of amendments.
A.
A use, building, structure, sign, parking space, loading space, landscaping, or other situation which would comply with the provisions of this chapter at the time at which a building permit is issued or a special permit is granted but would not comply with a proposed amendment to this chapter shall be considered to be nonconforming and may be completed, continued or maintained, provided that:
(1)
The building permit was issued or special permit was granted before the first publication of notice of public hearing on the proposed amendment (the filing of an application for either a building permit or a special permit is not sufficient to vest rights); and
(2)
Substantial physical construction or start of operations is begun within six months of the issuance of a building permit or within two years of the grant of a special permit and is carried through to completion as continuously and expeditiously as is reasonable in the opinion of the Director of Municipal Inspections or designee. If the construction is not completed within 18 months of the issuance of the building permit, the rights to nonconforming status shall cease and the construction shall comply with this chapter, as amended.[1]
B.
In the event of the filing and subsequent approval of a definitive subdivision plan, an exemption from an amendment to this chapter and a right to be treated under the previously existing provisions of this chapter may be vested as set forth in MGL c. 40A, § 6.
C.
In the event of the filing and subsequent endorsement of an "approval not required" plan, referred to in MGL c. 41, § 81P, of the Subdivision Control Law (MGL c. 41, §§ 81K through 81GG), an exemption from an amendment to this chapter affecting the use of land only and a right to be treated under the previously existing provisions of this chapter may be vested as set forth in MGL c. 40A, § 6. Such exemption shall apply only in the case of the endorsement of a plan showing a division of land, as defined in MGL c. 41, § 81L, of the Subdivision Control Law, in which there is a change in lot lines and shall not apply in the case of the endorsement of a plan which confirms existing lot lines without change.
D.
In the event that rights have been vested under a previous version of the Zoning Ordinance, an owner may proceed as if that version of the Zoning Ordinance applied to his/her property or he/she may use the most current version of the Zoning Ordinance but must use either version of the Zoning Ordinance fully and cannot select provisions of both versions.
§ 300-88 Certificate of occupancy or registration. [1]
The Director of Municipal Inspections or designee may issue a certificate of occupancy or certificate of registration of nonconformity that acknowledges the existence of a use, structure, building, lot, sign, parking space, loading space, landscaping or other situation which is believed to be nonconforming. The issuance of either certificate shall not be a final determination by the Director of Municipal Inspections or designee, unless so stated, that the apparent nonconformity was lawfully created but is a means of recording the size, characteristics and degree of nonconformity at the time of issuance of the certificate.