Colonie Town City Zoning Code
ARTICLE VIII
Nonconforming Uses and Structures
§ 190-34 Nonconforming uses.
[Amended 6-28-2007 by L.L. No. 10-2007; 5-21-2009 by L.L. No. 4-2009]
A.
Determination of nonconforming use. Any lawfully established use of property legally existing at the time of the passage of this chapter that does not conform to the regulations thereof, except those established pursuant to the issuance of a use variance, shall be deemed a nonconforming use.
B.
Continuation. Any nonconforming use which existed lawfully at the time of adoption of this chapter may be continued, subject to the following provisions.
(1)
Extension, modification or replacement.
(a)
Extension. A nonconforming use shall not be enlarged or extended beyond the area occupied by such use. No structure occupied by or accessory to such use shall be constructed, enlarged or extended, except for the following:
(b)
Replacement. If a nonconforming use is modified or replaced in whole or in part by another use, such use shall conform to this chapter.
[1]
Any nonconforming use undergoing a change of use which does not comply with section § 190-20C of this chapter but has a setback of at least 25 feet from the boundary of any Single Family Residential or Multifamily Residential Zoning District is prohibited unless a special use permit is obtained as set forth in § 190-57.
[Added 5-1-2014 by L.L. No. 8-2014]
(c)
In an OR, NCOR, COR or HCOR District where a mixed-use site is not in conformance with respect to the required proportion of commercial to residential use, an existing commercial use may be replaced with a permitted commercial use, provided no other violations of this chapter are created by such replacement.
(2)
Discontinuance. A nonconforming use shall not be changed unless changed to a permitted use. A nonconforming use, if changed to a permitted use, may not thereafter be changed back to a nonpermitted use. When a nonconforming use has been discontinued for a period of 18 months or more, intent to abandon or relinquish such nonconforming use shall be presumed, and such nonconforming use shall be deemed abandoned and shall not thereafter be reestablished, and the use shall be changed to a permitted use.
(3)
Destruction and restoration. If any building or structure in which a nonconforming use is conducted is hereafter removed or destroyed through natural or other cause beyond the control of the owner, to the extent that the loss is 75% or more of its fair market value at the time of such damage, the use shall not be reinstated. If any such building or structure is intentionally removed or destroyed to any extent by its owner or agent thereof, the nonconforming use shall not be reinstated.
§ 190-35 Nonconforming structures.
[Amended 5-21-2009 by L.L. No. 4-2009]
A.
Completion. Any building or structure for which construction was lawfully begun prior to the adoption of this chapter may be completed and used in accordance with the approved plans and specifications for said building or structure.
B.
Continuation. Any nonconforming building or structure which exists at the time of the adoption of this chapter may be maintained so long as it remains otherwise lawful, subject to the following provisions:
(1)
Modification and replacement.
(a)
Modification.
[1]
A nonconforming building or structure shall be maintained in such condition as will not constitute a danger to the health, safety or general welfare of the public.
[2]
A nonconforming building or structure shall not be added to, enlarged, reduced or altered in any manner which increases its nonconformity, with the exception of existing telecommunication towers as set forth in § 190-34 B(1)(a)[2]. Nothing herein, however, shall prevent the strengthening or alteration to a safe condition of all or part of a building that is nonconforming, provided that the repair or alteration will not increase the nonconformity.
[3]
A nonconforming building undergoing a change of use which does not comply with § 190-20C of this chapter but has a setback of at least 25 feet from the boundary of any Single Family Residential or Multifamily Residential Zoning District is prohibited unless a special use permit is obtained as set forth in § 190-57 and the nonconforming building maintains or exceeds its current setback.
[Added 5-1-2014 by L.L. No. 8-2014]
(b)
Replacement. A nonconforming structure may be replaced, to occupy the same footprint on the lot and not exceeding the height of the prior structure, or may be rebuilt providing greater conformance to the dimensional requirements article of this chapter,[1] subject to a site plan review by the PEDD or Planning Board, if applicable.
(2)
Destruction and restoration. A nonconforming building or structure destroyed or damaged through natural or other cause beyond the control of its owner may be replaced, to occupy the same space on the lot and not exceeding the height of the prior structure, or may be rebuilt providing greater conformance to the dimensional requirements article of this chapter,[2] subject to a site plan review by the PEDD or Planning Board, if applicable. A complete application for building and zoning permit for the replacement must be made within one year from when the damage was sustained.
§ 190-36 Changes in use of nonconforming lots.
No existing residential use established on a lot which does not conform to the minimum area, width, frontage or building setback requirements as set forth in this chapter for the zoning district in which the lot is located shall be converted to any permitted nonresidential use, nor shall any existing single-family residential use established on any such lot be converted to any multifamily residential use.
§ 190-37 Certain uses deemed conforming.
A single-family dwelling, two-family dwelling, cemetery, greenhouse, public utility plant, state, county or municipal building, airport, radio station, religious institution or a club established pursuant to the New York State Not-For-Profit Corporation Law or otherwise, and qualified as a tax-exempt organization pursuant to 25 U.S.C.A. § 501(c)(7) and applicable regulations, as the same may be amended from time to time, existing in any district at the time of the passage of this chapter or any amendments thereto, shall be deemed a conforming use upon the lot then devoted to such use, provided that such use has been legally established, and the lot containing these uses may not increase in size.
§ 190-38 Uses established by variance.
Any use established pursuant to a use variance issued prior to the date of adoption of this chapter that does not conform to the regulations thereof shall be permitted to continue, subject to any conditions of the variance decision under which it was established. Continuation of all such uses shall be governed by the provisions for extension, modification or replacement of nonconforming uses as set forth in this article.
§ 190-39 Administration and enforcement.
The provisions of this article shall be primarily administered and enforced by the Building Department, which shall have the power to make necessary inspections.