Jim Thorpe City Zoning Code
ARTICLE IX
Nonconformities
§ 500-133 Purpose, applicability, registration, and continuation and change.
A.
Purpose.
(1)
To recognize that if, prior to the adoption of this chapter, as amended, property was used for a then lawful purpose or in a then lawful manner which this chapter would now render prohibited and nonconforming, such property is generally held to have acquired a vested right to continue such nonconforming use or nonconforming structure. Nevertheless, this does not preclude the Borough from regulating the change, alteration, reconstruction, reestablishment, extension, destruction, and abandonment of nonconforming uses in accord with the Pennsylvania Municipalities Planning Code,[1] and general case law.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
To limit the injurious impact of nonconforming uses and/or structures on other adjacent properties within a particular district and the community as a whole, while recognizing that the change, alteration, reconstruction, reestablishment, or extension of nonconforming uses and/or structures may not be contrary to the public interest or the general purpose of this chapter.
(3)
To prescribe those standards which are to be applied by the Borough in determining the reasonableness of a proposal to change, alter, reconstruct, reestablish, or extend a nonconforming use.
B.
Applicability. The provisions and protections of this Article IX shall apply only to those nonconforming lots, structures and uses which legally preexisted the applicable provisions of this chapter, as amended, or which are recognized by § 500-135. Any lot, structure or use created, constructed, or established after the effective date of the original zoning ordinance, as amended, reenacted and replaced, which does not conform to the applicable requirements shall be considered an illegal lot, structure or use subject to the penalties prescribed by this chapter, and the said lot, structure or use shall not be entitled to any of the protections afforded to legal, preexisting nonconforming lots, structures or uses.
C.
Continuation and change. A lawful nonconforming lot, structure or use as defined by this chapter may be continued and may be sold and be continued by new owners. Any expansion, alteration, extension or change in a nonconformity shall only proceed in compliance with this article.
§ 500-134 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A lot the area or dimensions of which were lawful prior to the adoption or amendment of this chapter, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment.
A structure or part of a structure manifestly not designed to comply with the applicable use or extent of use provisions of this chapter, as previously amended or as may be amended, where such structure lawfully existed prior to the enactment of this chapter or amendment or prior to the application of such ordinance or amendment to its location by reason of annexation. Such nonconforming structures include, but are not limited to, nonconforming signs.
As applied to a nonconforming structure, a change or rearrangement in the structural parts or in the existing facilities, or an enlargement, whether by extending on a side or by increasing in height, or the moving from one location or position to another
The rebuilding of a nonconforming structure damaged or destroyed by casualty to the exact or less nonconforming condition which existed prior to the casualty.
A use, whether of land or of structure, which does not comply with the applicable use provisions of this chapter as previously amended or as may be amended, where such use was lawfully in existence prior to the enactment of such ordinance or amendment, or prior to the application of this chapter or amendment to its location by reason of annexation.
The conversion of a nonconforming use to a different use classification as enumerated on the Schedule of Uses.[1]
The increase in area of a nonconforming use throughout the structure which the said use partially occupies; or the enlargement of a nonconforming use onto property not already occupied by the said use.
The reopening or reinstitution of a nonconforming use which has been discontinued by the owner of the said use, such reopening effected prior to the abandonment of the nonconforming use as determined under the provisions of this chapter.
§ 500-135 Nonconformities under development.
For the purposes of this Article IX, a building, structure, or use, legally permitted, planned and substantially under construction in compliance with existing regulations prior to the effective date of this chapter, or any amendment hereto, and completed within a one-year period after the effective date of this chapter or amendment hereto, shall be considered nonconforming.
§ 500-137 Maintenance; condemned structures.
A.
Maintenance. Normal maintenance and repair, such as painting, replacement of siding, and similar activities is allowed, as well as those interior renovations which do not structurally alter the building or area or result in increased use of the building or area, or a change of nonconforming, or otherwise create more incompatibility with the surrounding permitted uses. Such maintenance and repair activities shall comply with all other applicable standards and permit requirements of this chapter.
B.
Condemned structures. A nonconforming structure which has been legally condemned shall not be rebuilt or used except in accord with the provisions of this chapter.
§ 500-138 Changes of nonconforming uses.
A.
Special exceptions. All changes of nonconforming uses shall be considered special exceptions subject to the specific procedures and review criteria contained in § 500-176 and the review factors in § 500-144.
(1)
More restrictive classification. A nonconforming use may only be changed to a use of equal or less nonconformity (i.e., more restrictive classification) as determined by the Zoning Hearing Board in accord with classification of the uses in the Schedule of Uses.
(2)
General standard. The general standard shall be that no change of a nonconforming use shall be permitted if such change will result in the establishment of a use which is materially different from the existing use in terms of negative effects on the community and the long term application of this chapter to eliminate incompatible uses from specific zoning districts. For example, a change from a nonconforming retail store in a residential district to a bank may be permitted; however, a change to a manufacturing use would not be permitted.
B.
Conforming changes and conversions.
(1)
Change. A change in a nonconforming use to a conforming use shall not be considered a special exception unless the proposed use is classified as a special exception by the Schedule of Uses. A change of a nonconforming use to a conforming use shall be considered an abandonment of the nonconforming use which shall not afterwards revert to a nonconforming use.
(2)
Conversion. The conversion of a nonconforming use to a nonconforming use of like classification shall not be considered a special exception. For example, a nonconforming retail establishment selling groceries proposed for conversion to a shoe store would not be considered a change in nonconforming use.
§ 500-139 Expansion of nonconforming uses.
B.
Expansion onto other properties of record in the same ownership; new structures. Expansions of a nonconforming use shall be limited to the same parcel of property on which the nonconforming use is situated as said parcel existed on record at the time of the adoption of this chapter. For any nonconforming uses not involving a nonconforming structure, no new structures shall be permitted as part of an expansion.
C.
Expansion limitation. An expansion of land or structure utilized for the nonconforming use shall be limited to a total increase not to exceed 50% of land and 50% of structure beyond what existed at the time the use became nonconforming. All such expansions of a nonconforming use may be permitted in successive increments for a total up to the increase permitted; and each increment shall be a separate application. Applications for successive increments shall only be entertained by the Borough upon the completion of the previously approved addition or expansion.
§ 500-140 Nonconforming structures.
Where a lawful structure exists at the effective date of adoption or amendment of this chapter that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:
A.
Enlargement. A nonconforming structure may not be enlarged by more than 50% of its existing floor area. Such enlargement shall not exceed the maximum height or maximum building coverage requirements for the district in which such nonconforming structure is located.
B.
Restoration.
(1)
A nonconforming structure that has been damaged or destroyed by fire, windstorm, lightning or a similar cause deemed to be no fault of the owner may be rebuilt to the same dimensions, or others which are deemed less nonconforming by the Zoning Officer.
(2)
No rebuilding shall be undertaken until plans for rebuilding have been presented and approved by the Zoning Officer.
(3)
All permits and approvals required for rebuilding the structure must be obtained within 18 months from the date of damage or destruction.
C.
Removal. Should such structure be moved for any reason for any distance whatever, it shall then conform to the regulations for the district in which it is located after it is moved.
§ 500-142 Abandonment and reestablishment of nonconformities.
A.
Abandonment. Unless extended in accord with § 500-142B, if a nonconforming use of structure or land ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of 18 months or more, then this shall be deemed to be an intent to abandon such nonconforming use, and any subsequent use of the land or structure shall be for conforming purposes only and said use shall in all respects conform to the applicable provisions of this chapter. A change of a nonconforming use to a conforming use shall be considered an abandonment of the nonconforming use which shall not thereafter revert to a nonconforming use.
B.
Extension. The Zoning Officer may for good cause grant a one-time extension of not more than one year for the reestablishment of the use of a nonconforming structure or a one-time extension of not more than 90 days for the reestablishment of a nonconforming use of land. Said extension shall only be considered upon written application for same submitted by the property owner.
§ 500-143 Use of nonconforming lots of record.
A.
Adjacent property. If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this chapter, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this chapter, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with lot width and area requirements established by this chapter, nor shall any division of any parcel be made which creates a lot with width or area below the requirements stated in this chapter.
B.
Single and separate ownership.
(1)
In any district any use permitted in that district and customary accessory buildings may be erected on any single lot of records at the effective date of adoption or amendment of this chapter, provided all other applicable requirements are satisfied.
(2)
Any use for which an increased lot size is required by this chapter shall not be permitted on a nonconforming lot.
§ 500-144 Review factors.
In addition to all other applicable requirements, the Zoning Hearing Board shall consider any nonconformity special exception application in terms of the effect on the following factors:
A.
Nuisance considerations.
(1)
Traffic generation.
(2)
Noise, dust, fumes, gases, odor, glare, vibration, fire and explosion hazards and other nuisances.
(3)
Amount and nature of outdoor storage.
(4)
Hours of operation.
(5)
Compatibility with the character of the surrounding neighborhood.
(6)
Potential of the expansion to reduce existing congestion and alleviate parking shortages by improved site design, addition of parking and improved loading areas.
B.
Specific considerations.
(1)
Neighborhood character. The proposed change will be less objectionable in external effects than the previous nonconforming use and will be more consistent physically with its surroundings and neighborhood.
(2)
Storage of materials. There shall be no increase in the amount of materials, supplies and/or products that are stored outside a nonconforming facility excepting those types of uses outlined in § 500-144B(3).
(3)
Screening. Where the nonconforming activity is one which necessarily results in the storage of large quantities of material, supplies, or products outside (such as a sawmill, farm machinery sales operation or similar operation), the use may only be expanded if a solid fence of wood and/or buffer, not less than six feet in height, is present on all sides of the immediate area in use. Stored material shall not exceed the height of the screening material and nine feet at the maximum. Setbacks and buffers shall be provided in accord with § 500-60.
(4)
Setbacks. No addition, change or expansion of a nonconforming use shall further violate setback and/or height regulations of the district in which it is located.
(5)
Parking and access. In no case will a change, addition or expansion of a nonconforming use be allowed which would result in the diversion of traffic, or relocation of a driveway on the site to any point nearer a residential property or result in violation of any of the parking and unloading requirements of this chapter. The Borough may require vegetative screening of the parking area from nearby residential areas in accord with § 500-60.
(6)
Average daily traffic. The applicant shall show how the proposed change will affect average daily traffic (ADT) pursuant to the standards set forth in the most current Trip Generation Manual published by the Institute of Transportation Engineers, or its successor. If ADT will increase the applicant shall document to the satisfaction of the Zoning Hearing Board how any community impacts will be addressed.
§ 500-145 Survey.
A.
Required in all cases. In the case of any proposed reconstruction or any proposed alteration or expansion of a nonconforming structure, the applicant shall provide a survey prepared by a professional land surveyor showing the position of the existing nonconforming structure with the entire proposed structure superimposed over the position of the existing nonconforming structure in addition to all other information required by this chapter.
B.
Required by Borough. A survey prepared by a professional land surveyor may also be required by the Borough in any case as necessary to determine compliance.
C.
Survey information. In addition to the information required in § 500-145A, the survey shall show all details required to determine compliance, including, but not limited to, existing and proposed improvements, existing and proposed building height, existing and proposed lot coverage, minimum required setback lines, nonconforming setback lines, nonconforming setback areas, and existing and proposed nonconforming footprint areas.