Honey Brook City Zoning Code
PART 12
Nonconforming Uses and Structures
§ 27-1201 Applicability.
[Ord. No. 247-2018, 9/17/2018]
The regulations of this Part shall apply to existing lots, structures, uses and signs that do not conform to the regulations of the zoning district in which they are located and were either in existence prior to the effective date of this Chapter, or subsequent amendments, or are rendered nonconforming by the adoption of this Chapter. As such, they shall be known and regarded as nonconforming, and the following regulations, as applicable, shall apply to them. Provided, however, that the burden of proof shall remain upon the landowner to prove that a lot, structure, use or sign is lawfully nonconforming under the procedure in § 27-1103.
§ 27-1202 Alteration, Restoration, Enlargement and Use of Nonconformities.
[Ord. No. 247-2018, 9/17/2018]
A.
Nonconforming Lots. A lot which contains no structures and which is held in single and separate ownership on the effective date of this Chapter, or subsequent amendments, or rendered nonconforming by this Chapter, which does not meet the minimum lot area requirement or lot width requirement at the building line of the zoning district in which it is located, or which is of such unusual dimensions that the owner cannot reasonably comply with one or more of the other dimensional requirements of the zoning district in which it is located, may be used or a structure may be erected thereon for use as limited by the use regulations of the zoning district in which the lot is located, subject to the following conditions:
1.
The owner does not own or control contiguous property sufficient to enable the owner to comply with the minimum lot area, width, building coverage, yard and height regulations and design standards of the zoning district in which the property is located. For purposes of this regulation, a nonconforming lot under common ownership with a contiguous conforming or nonconforming lot shall be considered one lot.
2.
The proposed structure or use shall comply with the design standards and the width, impervious coverage, yard and height regulations, except minimum lot size and lot width at the building line, of the zoning district in which the lot is located. Otherwise, the lot shall not be used or a structure erected unless a variance is granted by the Zoning Hearing Board.
B.
Nonconforming Structures.
1.
Continuation. Any lawful nonconforming structure existing on the effective date of this Chapter, or subsequent amendments, or rendered nonconforming by this Chapter, may continue to exist and be used. Such structures shall not further deviate from the provisions of this Chapter, except as explicitly provided herein.
2.
Restoration. Any lawful nonconforming structure which has been involuntarily damaged by fire, explosion, flood or similar cause or legally condemned as unsafe, may be restored or reconstructed within the limits of the existing foundation or footprint as the damaged structure, provided that:
a.
The restored or reconstructed structure shall not exceed its original dimensions.
b.
Restoration or reconstruction shall commence within 1 year from the date of damage, destruction or condemnation, and shall be completed within one year of the date of the commencement of such work.
c.
The use of the restored or reconstructed nonconforming structure shall be in accordance with this Part.
d.
These provisions shall not apply to a nonconforming structure that is at least 50 years old at the time of application.
3.
Alteration and Enlargement.
a.
Any lawful nonconforming structure existing on the effective date of this Chapter, or subsequent amendments, or rendered nonconforming by this Chapter, may be altered or enlarged, provided that such alteration or enlargement conforms to all of the lot area, width, impervious coverage, yard requirements, height and design standards of the zoning district in which it is located. If the new addition or enlargement cannot meet the requirements, it shall not be permitted unless, upon application, the Zoning Hearing Board grants a variance.
b.
Notwithstanding the provisions in subparagraph (1) above, a structure fifty (50) years old or older at the time of application that is nonconforming due to encroachment within the one or more yard setbacks shall be permitted to be altered or expanded without the necessity of a variance as follows.
i.
An addition or expansion which is located within the required front yard, provided that the alteration or expansion is no closer to the street line than the existing structure, and side and rear yards are met.
ii.
An addition or expansion which is located within the required rear yard, provided that the addition or expansion is no closer to the rear lot line than the existing structure, and the front and side yards are met.
iii.
An addition or expansion which is located within a required side yard, provided that the addition or expansion is not closer to the side lot line than the existing structure, and that the minimum front yard, rear yard and aggregate side yard are met.
c.
If a nonconforming structure is used or occupied by a nonconforming use, any alteration or enlargement of the structure shall be in compliance with the limitations of subsection 3.
C.
Nonconforming Uses.
1.
Continuation. Any lawful nonconforming use of a structure or of land legally existing on the effective date of this Chapter, or subsequent amendments, or rendered nonconforming by this Chapter, may continue to exist and be used.
2.
Alteration and Expansion. The alteration or expansion of a nonconforming use of a structure or of land shall be permitted only if a special exception is granted by the Zoning Hearing Board, and only in strict conformity with the following regulations:
a.
Such alteration or expansion shall conform to all of the lot area, width, impervious coverage, height and yard regulations and design standards of the zoning district in which it is located.
b.
The alteration or extension of the nonconforming use shall be limited to and permitted on only the same lot that was in existence when the use first became nonconforming.
c.
The total increase in area of the nonconforming use of a structure shall not exceed an aggregate total of more than fifty (50) percent of the total floor area which is devoted to the nonconforming use. Floor area shall be based upon the total floor area of the structure at the time the use first became nonconforming. For example, if all other requirements of this Chapter are met, a nonconforming use may be expanded once by twenty (20) percent, and a second time by not more than 30 percent of the total floor area of the structure as it existed at the time the use first became nonconforming. If prior to the effective date of this restriction the use has been expanded by a percentage greater than fifty (50) percent, it shall not be entitled to any further expansion under this Section.
d.
The total increase in area of the nonconforming use of land shall be limited to a distance of 250 feet in any direction from the existing nonconforming use or to an area not to exceed an aggregate total of more than fifty (50) percent of the total area of the original lot which is devoted to the nonconforming use, whichever is lesser.
3.
Change in Use. Once changed to a conforming use, whether within a structure or on land, the conforming use shall not be permitted to revert to a nonconforming use. A nonconforming use may be changed to another nonconforming use only when approved by the Zoning Hearing Board as a special exception and under the following conditions:
a.
The applicant shall prove that the proposed change in use will have the same or less impact than the existing nonconforming use with respect to the following factors:
§ 27-1203 Registration of Nonconforming Uses and Structures.
[Ord. No. 247-2018, 9/17/2018]
Landowners may apply to register a nonconforming use or structure with the Zoning Officer on forms provided by the Borough with sufficient evidence in the form of building permits, use and occupancy permits, photographs, zoning orders, assessment records or sworn affidavits to allow the Zoning Officer to make a determination. The Zoning Officer may conduct such additional investigation as deemed necessary, and shall issue a written determination whether the land, building or structure is a legal nonconforming use within forty-five (45) days of the application. Appeals of the Zoning Officer's determination shall be made to the Zoning Hearing Board.
§ 27-1204 Abandonment of Nonconforming Use or Structure.
[Ord. No. 247-2018, 9/17/2018]
A.
Whenever a lawful nonconforming use of land or of a structure is abandoned or discontinued or the use is removed for a period of twelve (12) consecutive months, or the structure constituting or housing the nonconformity is razed and not reconstructed within a period of twelve (12) consecutive months, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and subsequent use of such land or structure shall conform to the regulations of the zoning district in which it is located, unless the Zoning Hearing Board, as a matter of law, determines that such abandonment has not occurred.
B.
These provisions shall not apply to a nonconforming structure that is at least fifty (50) years old at the time of application.
§ 27-1205 Rules of Interpretation.
[Ord. No. 247-2018, 9/17/2018]
A.
No special exception shall be granted under the provisions of this Part with respect to any property where the requested special exception will result in violations of other lot area, width, impervious coverage, setback, height and yard regulations and design standards of the zoning district in which the property is located, unless a variance is granted by the Zoning Hearing Board from the regulation which is otherwise applicable. The owner of a nonconforming use or other nonconformity has no inherent right to expand, alter or use any nonconformity in conflict with the applicable zoning district regulations.
B.
In those zoning districts in which the district regulations establish different design standards or lot area, width, impervious coverage, setback, height or yard regulations for uses permitted as of right, by special exception or by conditional use, no lot shall be construed to be nonconforming for purposes of the regulations of this Part which complies with the minimum lot area and other regulations applicable to uses permitted as of right. The regulations applicable to uses permitted by special exception or by conditional use shall not render the lot nonconforming, unless the owner demonstrates that the lot cannot reasonably be used for any use permitted as of right in such zoning district, or the Zoning Hearing Board grants a variance from the applicable regulations.
C.
No provision of this Part which establishes a specific percentage limitation upon the expansion of a nonconforming use shall be construed to automatically authorize an expansion to the maximum permitted, nor shall a variance related to any nonconformity be granted from the applicable zoning district regulations in excess of the minimum variance necessary to afford relief. It shall be incumbent upon the applicant to prove the need for such expansion consistent with established principles of law.