Kidder Township City Zoning Code
PART 9
Nonconformities
§ 180-133 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 render thereafter 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 Township from regulating the change, alteration, reconstruction, reestablishment, extension, destruction and abandonment of nonconforming uses in accord with the Pennsylvania Municipalities Planning Code and general case law.
(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 Township in determining the reasonableness of a proposal to change, alter, reconstruct, reestablish, or extend a nonconforming use. The following are regulations which shall apply.
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 § 180-135 or § 180-136. 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.
Registration. It shall be the responsibility of the party asserting a nonconformity to provide the evidence that the nonconformity is legal. A property owner may request a written statement of nonconformity from the Zoning Officer after providing sufficient evidence.
D.
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.
§ 180-134 Definitions.
As used in this article, the following terms shall have the meanings indicated:
NONCONFORMING LOT
Any lot which does not conform with the minimum width, depth and area dimensions specified for the district where such a lot is situated, such lot having been created and recorded in the office of the Carbon County Recorder of Deeds prior to the effective date of this chapter, as amended.
NONCONFORMING STRUCTURE
A structure or part of a structure which does not comply with the applicable district limitations on structure size and location on a lot, where such structure lawfully existed prior to the enactment of this chapter, as amended; and including, but not limited to, nonconforming signs.
NONCONFORMING STRUCTURE, ALTERATION OR EXPANSION
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.
NONCONFORMING STRUCTURE, RECONSTRUCTION
The rebuilding of a nonconforming structure damaged or destroyed by casualty to the exact or less nonconforming condition which existed prior to the casualty.
NONCONFORMING USE
A use, whether of land or of a structure, which does not comply with the applicable use provisions in this chapter or amendments hereto, where such use was lawfully in existence prior to the enactment of this chapter, as amended.
NONCONFORMING USE, CHANGE
The conversion of a nonconforming use to a different use classification as enumerated on the Schedule of Uses.
NONCONFORMING USE, EXTENSION
The expansion of a nonconforming use throughout the structure which the said use partially occupies; or the expansion of a nonconforming use onto property not already occupied by the said use.
NONCONFORMING USE, REESTABLISHMENT
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.
§ 180-135 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.
§ 180-136 Nonconformities by variance.
A building, structure or use allowed by variance in a district where it is nonconforming with any regulations of this chapter, as amended, reenacted and replaced, shall be considered nonconforming for the purposes of this chapter.
§ 180-137 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, however, 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 accordance with the provisions of this chapter.
§ 180-138 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 § 180-176D and the review factors in § 180-144.
(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 Planning Commission and 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 affects 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 an R-1 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 thereafter 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.
§ 180-139 Extension of nonconforming uses.
A.
Special exceptions. All extensions of nonconforming uses into more area of a structure or onto more area of property shall be considered special exceptions subject to the specific procedures and review criteria contained in § 180-176D and the review factors in § 180-144.
B.
Extension onto other properties of record in the same ownership; new structures. Extensions 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 extension.
C.
Extension limitation. An extension of land or structure utilized for the nonconforming use shall be limited to a total increase not to exceed 33% of land and 33% of structure beyond what existed at the time the use became nonconforming. All such extensions 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 Township upon the completion of the previously approved addition or extension.
D.
Prohibited extensions. Should the use proposed for extension be one which is specifically prohibited as a new use in the Township or is a use judged by the Township to be one similar to such a use or of such a nature as to impose health, safety or welfare concerns which cannot be satisfied by the imposition of the conditions permitted under this chapter, the requested extension shall be denied. The Zoning Hearing Board shall consider past operating performance in making its decision.
§ 180-140 Restoration of structure or use.
A.
Restoration prohibited. A nonconforming building or other structure which has been damaged or destroyed by fire, explosion, windstorm, flood or other similar active cause to the extent of more than 60% of its reproduction value at the time of the damage shall not be restored except in conformity with the regulations of the district in which it is located.
B.
Restoration permitted. When damage is less than 60% of its reproduction value, a nonconforming building or other structure may be repaired or reconstructed and used as before the time of damage, provided such repairs or reconstruction are completed within one year of the date of such damage.
C.
Damage determination. The determination of the extent of damage in terms of percent replacement value due to damage or destruction shall be made by averaging three estimates made by two certified appraisers appointed by the Township and one insurance adjuster. The cost of such appraisals shall be borne by the property owner of the affected property.
D.
Residential setbacks. For a residential structure nonconforming only as to setbacks, in districts where residences are permitted and where most of the residential structures nearby are similarly nonconforming, the structure may be rebuilt similar to the setbacks of the adjoining lots or of the majority of the lots in the particular area.
§ 180-141 Abandonment and reestablishment of nonconformities.
A.
Abandonment. Unless extended in accord with § 180-141B, if a nonconforming use of structure or land ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of one year or more or 90 days or more, respectively, 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 Hearing Board may, as a special exception and if deemed appropriate by the Zoning Hearing Board in accord with the Township Comprehensive Plan and the standards in § 180-179D, 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 the nonconforming use of land. Said extension shall only be considered by the Zoning Hearing Board upon written application for same submitted by the property owner.
§ 180-142 Alterations and expansions of nonconforming structures.
A.
Alterations. The alteration or expansion of nonconforming structures shall be permitted only in accord with this § 180-142.
B.
Procedure; permits. All applicable permits for the alteration or expansion of a nonconforming structure shall be required. Such alteration or expansion shall be considered a special exception if the alteration or expansion involves a change or extension of a nonconforming use as regulated by § 180-138 and § 180-139, respectively.
C.
Increase in area or bulk nonconformity. In the case where a proposed alteration or expansion of a nonconforming structure will result in an increased nonconformity of setback, height, lot coverage or other area or bulk standard, a variance shall be required from the Zoning Hearing Board.
§ 180-143 Use of nonconforming lots of record.
A.
Single-family dwelling.
(1)
Principal permitted use. In any district where single-family residences are permitted, a single-family dwelling and accessory buildings and uses may be erected as a principal permitted use on any lawfully existing nonconforming lot of record even though the lot area is less than the minimum requirements for the district.
(2)
Standards. Side and rear setbacks, but not front setbacks, may be reduced by the same ratio as the lot is nonconforming as to area, but no side or rear setback shall be reduced to less than 10 feet. This shall not apply to any required wetland, waterbody or watercourse setback or buffer, and all other district requirements shall apply. (See § 180-23A for accessory structures.)
(3)
Where two or more adjacent lots with less than the required area are held by one owner, the request for a zoning permit shall be considered a special exception and shall be referred to the Zoning Hearing Board which may require the owner of said lots to combine the lots or realign lot lines to create a lot or lots that conform, or conform as nearly as possible (where total conformance is impossible), with the applicable requirements for lot dimensions and area.
B.
Nonresidential uses. A nonresidential use accessory buildings and uses may be developed on any lawfully existing nonconforming lot where permitted by the Schedule of Uses provided:
(1)
Standards. All setbacks normally required in the district are maintained and all other applicable standards in this chapter are satisfied.
(2)
Lot size requirement. This chapter does not require a lot size for the specific use which is greater than the lot size for the district.
§ 180-144 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, as on a lot in a nonconforming use, excepting those types of uses outlined in § 180-144B(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 § 180-60.
(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 Township may require vegetative screening of the parking area from nearby residential areas in accord with § 180-60.
(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.
