Brewster City Zoning Code
ARTICLE VIII
Nonconforming Uses, Structures and Lots
§ 179-24 Applicability.
The provisions of this section apply to nonconforming uses, structures and lots so created by the initial enactment of this chapter or by any subsequent amendment.
§ 179-25 Extensions and alterations.
A.
As provided in MGL c. 40A, § 6, a nonconforming single- or two-family dwelling may be altered or extended, provided that the Inspector of Buildings determines that doing so does not increase the nonconforming nature of said structure.
B.
Other pre-existing nonconforming structures or uses may be changed, extended or altered on special permit from the Board of Appeals, if the Board of Appeals finds that such change, extension or alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming use.
C.
Once changed to a conforming use, no structure or land shall be permitted to revert to a nonconforming use.
§ 179-26 Residential lots of record.
A.
One single-family dwelling may be erected on any lot, regardless of a common ownership with that of adjoining land located in the same residential district which, as of May 7, 1973, contained at least 15,000 square feet and had a minimum frontage of 100 feet and complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement and provided, further, that the proposed structure is to be located on such lot so as to conform to the minimum requirements of front, rear and side yard setbacks and to all other requirements for such structures in effect at the time of plan endorsement; provided, however, if there are no applicable setbacks, the front yard setback shall be 30 feet and the side and rear yards setbacks shall be 20 feet.
[Amended 5-2-2005 ATM, Art. 26]
B.
Certain lots are exempted from current dimensional requirements by MGL c. 40A, § 6. In addition, any increase in lot area, width, depth, yard or frontage requirements shall not apply to erection, extension or alteration or moving of a structure on a lot not meeting current dimensional requirements, provided that, as of June 25, 1978, such lot was a legal building lot and had lot area of at least 5,000 square feet and street frontage of at least 50 feet. Any structure proposed to be to be located on such lot shall conform to the setback requirements in effect at the time of the recording or endorsement of the deed or plan creating the lot; provided, however, that if there are no applicable setbacks, the front yard setback shall be 20 feet and the side and rear yards setbacks shall be 10 feet.
[Amended 5-2-2005 ATM, Art. 26]
C.
Certain lots are exempted from current dimensional requirements by MGL c. 40A, § 6.
[Added 9-22-1986 STM, Art. 34]
(1)
In addition, one single-family dwelling may be erected on any lot, regardless of common ownership with that of adjoining land, provided that such lot is:
(a)
Shown on a plan approved and endorsed in accordance with the Subdivision Control Law and the roads shown on such plan have been installed according to Planning Board requirements as set forth at the time of approval of such plan and a release from covenant or other security has been obtained; or
(b)
Shown on a plan endorsed "Approval Under the Subdivision Control Law Not Required" and the lot complied with all the applicable provisions of the Zoning Bylaw in effect at the time of endorsement of such plan.
(2)
In either case, the lot must have been created after June 25, 1978, and must be buildable under other applicable nonzoning provisions of the law, and any structure to be located on such lot must conform to the setback requirements in effect at the time of plan endorsement.
D.
Preexisting lots of record lacking street frontage.
[Added 10-17-1988 STM, Art. 23]
(1)
Certain lots of record existed before the effective date of this subsection and now lack any frontage as that term is defined in this chapter. When a lot possesses no frontage, as defined, one single-family dwelling may be constructed on the lot:
(a)
If it is determined that the lot satisfies the other requirements of this chapter.
(b)
If the lot possesses at least five acres of area.
(c)
If the Planning Board determines that physical access to the lot is reasonably guaranteed, that physical access is suitable for the needs of vehicular traffic likely to be generated by the proposed residential use and that physical access is adequate for the installation of all Town or municipal services likely to be needed for the reasonable use of the lot.
[Amended 11-13-2006 FYTM, Art. 28]
(d)
If the Planning Board issues a special permit which will authorize construction on the lot despite its lack of cognizable frontage.
(2)
Before the Planning Board can act favorably on an application for a special permit under this subsection:
(a)
The Fire Chief must certify to the Planning Board that, in his opinion, the way providing access to the lot is physically adequate throughout the year for use by fire apparatus, ambulances and rescue vehicles.
[Amended 11-13-2006 FYTM, Art. 28]
(b)
The Police Chief must certify to the Planning Board that, in his opinion, the way providing access to the lot is physically adequate throughout the year for use by police vehicles and inspection vehicles.
[Amended 11-13-2006 FYTM, Art. 28]
(c)
The Superintendent of the Department of Public Works must certify to the Planning Board that, in his opinion, the way providing access to the lot is safe and physically adequate for its present and proposed use and is unlikely to deteriorate significantly for at least five years.
[Amended 11-13-2006 FYTM, Art. 28]
(d)
The Inspector of Buildings must certify to the Planning Board that, in his opinion, the lot satisfies the other requirements of the Town of Brewster Zoning Bylaw.
(e)
The Board of Water Commissioners must certify to the Planning Board that the proposed use of the lot, in combination with uses already existing or ongoing, will not likely impact adversely upon the water supply or the quality of the groundwater supply of the Town, and, before making this determination, the Commissioners may require the applicant to prepare and present all necessary groundwater studies.
(f)
The applicant must present to the Planning Board a statement of his or her plans and ability to ensure, free of charge to the Town, the provision of all needed municipal or Town services for the lot and the maintenance of the way providing access to the lot so that the way will not over time significantly deteriorate from its present condition or become impassable because of flooding or snowfall.
(3)
Before the Planning Board grants a special permit, it shall require the applicant and the owner of record to execute and record a covenant running with the land covered by the special permit which shall ensure the proper and continuing maintenance of municipal services and the proper and continuing maintenance of the way in order to provide adequate physical access for the applicant and for the Town vehicles throughout the year. This covenant shall be executed in such a form that it may be specifically enforced. This covenant shall also provide that, in the event that the recipient of the special permit fails to maintain the way and the Town, in order to maintain access and municipal services, expends labor and materials to maintain the way, the Town shall be fully reimbursed for all labor and material costs incurred and for any legal costs incurred either in enforcing the covenant, maintaining the way or maintaining municipal services. Until these costs and expenses are paid, they shall constitute a lien upon the property.
[Amended 11-13-2006 FYTM, Art. 28]
(4)
The Planning Board shall decide each special permit application upon its individual merits, and the Board's decision for any application shall not prejudice its independent judgment on any subsequent application, despite the proximity of the lots. As a condition for its approval, the Planning Board may impose such conditions, safeguards and limitations as it deems necessary and proper to ensure the safety, convenience and welfare of the inhabitants of the Town, and the Board may require the execution and recording of a covenant which shall run with the land.
§ 179-27 Reduction or increase.
A.
Nonconforming lots with no structures located thereon may be changed in size or shape without losing exemptions of § 179-26, so long as the change does not increase the actual or potential number of building lots.
B.
Nonconforming lots with conforming or nonconforming structures located thereon may be changed in shape by right without losing exemptions of §§ 179-25, 179-26, and 179-28 through 179-32, inclusive, so long as the change does not increase the actual or potential number of building lots and does not increase the setback nonconformance of any structure.
[Added 5-7-2012 ATM, Art. 27[1]]
[1]
Editor's Note: This article also redesignated former Subsection B as Subsection D.
C.
Notwithstanding Subsections A and B above, if such change in size or shape will result in a net change in lot area to either lot or will increase a setback nonconformance of any structure, such change will require a special permit from the Board of Appeals.
[Added 5-7-2012 ATM, Art. 27]
D.
Any off-street parking or loading spaces, if already equal to or less than the number required to serve their intended use, shall not be further reduced in number.
§ 179-28 Change of nonconforming uses.
A.
Any nonconforming use of a structure may be changed to another nonconforming use, provided that the changed use is not a substantially different use, except as provided in Subsection B below, and approval for the change is granted by a special use permit for an exception by the Board of Appeals. For purposes of this section, a "substantially different use" is a use which, by reason of its normal operation, would cause readily observable difference in patronage, service, sight, noise, employment or similar characteristics from the existing nonconforming use or from any permitted use in the district under question.
B.
Any nonconforming use, which has been once changed to a permitted use, or another nonconforming use, which is not a substantially different use, shall not again be changed to another nonconforming use.
§ 179-29 Rebuilding and restoration.
Any nonconforming structure, totally destroyed by fire or other cause, may be rebuilt within one year but shall not be rebuilt to be nonconforming to a greater degree than the original.
§ 179-30 Abandonment.
Any nonconforming use of a structure or lot which has been abandoned or not used for a continuous period of two years or more shall not be used again, except for a conforming use.
§ 179-31 Moving.
Any nonconforming structure shall not be moved to any other location on the lot, or any other lot, unless every portion of such structure, the use thereof and the lot shall be conforming.
§ 179-32 Unsafe structures.
Any structure determined to be unsafe may be restored to a safe condition. Such work on any nonconforming structure shall not place it in greater nonconformity. If the cost to restore any structure shall exceed 50% of its physical replacement value, it shall be reconstructed only as a conforming structure and used only for a conforming use.