Melrose City Zoning Code
ARTICLE XII
Nonconformance
§ 235-12.1 Applicability.
The provisions of this article apply to actions in connection with lawfully existing nonconforming uses, structures and lots created by the initial enactment of this chapter or by any subsequent amendment, or as otherwise provided in M.G.L. c. 40A § 7. It is the purpose of this chapter to discourage the perpetuity of nonconforming uses and structures whenever possible. The lawful use of any building or land or lawful structure existing at the time of the enactment of this chapter may be continued, except as otherwise provided.
§ 235-12.2 Extension and alteration of nonconforming uses.
A.
Alteration of use.
(1)
A nonconforming use is altered when there is an increase in gross floor area or exterior lot area of the use, an increase in the number of dwelling units, a change in seasonal to full-time operation, or any substantial increase in the number of automobile trips generated by the use.
(2)
Nonconforming uses inside or outside of a structure cannot be altered, except by special permit issued by the Zoning Board of Appeals. In granting the special permit the Zoning Board of Appeals must find that the alteration is not substantially more detrimental to the neighborhood than the existing conditions. In judging detriment the Zoning Board of Appeals may consider without limitation impacts to traffic volumes or congestion, adequacy of utilities, noise, odor, and neighborhood character or other impacts as applicable.
B.
Change in use.
(1)
A nonconforming use may not be changed to another nonconforming use in a different use category within the Table of Use and Parking Regulations. Use categories include Residential, Community Facilities, Agriculture, Retail Service Commercial, Wholesale, Transportation, and Industrial, and Accessory Use.
(2)
A nonconforming use may be changed to another nonconforming use in the same use category within the Table of Use and Parking Regulations, if granted a special permit by the Zoning Board of Appeals. In granting the special permit the Zoning Board of Appeals must find that the alteration is not substantially more detrimental to the neighborhood than the existing use. In judging detriment, the Zoning Board of Appeals may consider without limitation impacts to traffic volumes or congestion, adequacy of utilities, noise, odor, and neighborhood character or other impacts as applicable.
§ 235-12.3 Nonconforming lots.
A.
Subdivisions, consolidation of parcels, or other lot line adjustments that result in the alteration or further violation of a nonconforming dimension of frontage, lot width, lot depth, yard setbacks, or coverage, is allowed by special permit issued by the Planning Board. In granting the special permit the Planning Board must find that the alteration is not substantially more detrimental to the neighborhood than the existing conditions. In judging detriment, the Planning Board may consider without limitation impacts to the scale of the structure, shading, visual effects and context of the built environment or other impacts as applicable.
B.
Subdivisions, consolidation of parcels, or other lot line adjustments that further reduce nonconforming lot area, floor area ratio or open space are prohibited.
C.
This provision shall not apply when the alteration of a nonconforming lot is the result of an eminent domain taking or is otherwise required for a public use. In this case subdivisions, consolidation of parcels, or other lot line adjustments are permitted by-right.
D.
Residential lot of record. Any lot lawfully laid out by plan or deed duly recorded, or any lot shown on a plan endorsed by the Planning Board with the words "approval under the Subdivision Control Law not required," or words of similar import, which complies (at the time of recording or such endorsement, whichever is earlier) with the minimum area, frontage, width and depth requirements, if any, of the zoning ordinance then in effect may be built upon for single- or two-family residential use provided it has a minimum area of 5,000 square feet, with a minimum frontage of 50 feet, and is otherwise in accordance with the provisions of Section 6 of the Zoning Act.
§ 235-12.4 Nonconforming site standards and parking.
A.
Nonconforming site standards including impervious surface and screening requirements may not be further reduced.
B.
Sites that are nonconforming to off-street parking and loading requirements may by special permit granted by the Zoning Board of Appeals provide reduced parking or loading for a new use if a Transportation Demand Management Plan (TDM), including policies for parking and/or loading management, transit promotion, bicycle storage, pedestrian safety and car sharing is provided. The TDM shall explain the long-term management and enforcement of the TDM components.
C.
Sites that are nonconforming to parking and loading dimensions may by special permit granted by the Zoning Board of Appeals retain or alter those dimensions for a new use of the site if a plan certified by a professional traffic engineer registered with the Commonwealth of Massachusetts is provided showing sufficient, safe access.
D.
Nonconforming site standards do not cause uses or structures that are otherwise conforming to the requirements of the Ordinance to become nonconforming.
§ 235-12.5 Structures with nonconforming dimensions and/or lots.
A.
Normal maintenance, painting, replacement of roof shingles or like sheathing materials, interior renovations and other improvements judged by the Building Commissioner to be cosmetic in nature shall not be considered as alterations, reconstructions, extensions or structural changes.
B.
Increase in fenestration dimensions on nonconforming portions of structures other than one- and two-family dwellings are considered to be alterations as specified herein.
C.
Any structural change that creates a new nonconformity is prohibited.
D.
For nonconforming single- and two-family residential structures: Allowances for the alteration including reconstruction, extension, or structural change of nonconforming structures and/or structures on nonconforming lots are governed by the following provisions and are summarized by Table 12.5 (Reconstruction, extensions or structural changes to one and two family nonconforming structures and/or structures on nonconforming lots).
(1)
Conforming additions to structures and placement of accessory structures are allowed by-right in the following circumstances:
(a)
If on a lot with nonconforming area:
[1]
Addition of a porch or sunroom or deck;
[2]
Enclosed addition allowed up to a cumulative 500 square foot footprint every 10 years;
[3]
Addition of a one-story garage for no more than two vehicles;
[4]
Conversion of a one-story garage for one vehicle to a one-story garage for two vehicles;
[5]
Small-scale, proportional storage structure;
[6]
Otherwise a special permit granted by the Zoning Board of Appeals is required.
(b)
If on a lot with nonconforming frontage/width or depth or on a conforming lot, conforming additions and accessory structures are allowed by-right.
(2)
Altering existing structures within the nonconforming yard/setback areas are allowed as follows: Note - The following are considered to be outside of the existing building's footprint and cannot be used to establish the nonconforming setback: an existing deck, porch or projections into required setbacks allowed in § 235-6.3.
(a)
Within the existing dwelling's footprint alterations are allowed by-right regardless of if the lot is nonconforming in terms of area, frontage/width or depth in the following circumstances.
[1]
Rebuilding the structure in-kind without any increase in height or gross floor area, except as reasonably necessary to comply with current Building Code and other regulatory requirements.
[2]
Installation of compliant dormer(s).
[3]
Increase in height of structure or other alteration at a setback of or greater than 75% of the required setback (e.g. in URA increase in height of portion of the structure at or greater than 7.5 feet of side lot line).
[4]
Otherwise a special permit granted by the Zoning Board of Appeals is required including for an increase in height of structure or other alteration within 75% of the required setback (e.g. in URA increase in height of portion of the structure within 7.5 feet of side lot line).
(b)
Outside of the existing dwelling's footprint additions, including porches and decks, are allowed by-right in the following circumstances:
[1]
If on a lot with nonconforming area:
[a]
An addition is an extension of the existing setback of the dwelling or at a more conforming setback; and
[b]
Is at or greater than 75% of the required setback; and
[c]
Is not exceeding a cumulative 500 sf footprint of enclosed area every 10 years.
[d]
Otherwise a special permit granted by the Zoning Board of Appeals is required.
[2]
If on a lot with nonconforming frontage/width or depth or on a conforming lot:
(3)
Altering existing structures' nonconforming height/stories, coverage, and open space are allowed as follows regardless of if the lot is nonconforming in terms of area, frontage/width or depth:
(4)
Demolishing a structure and constructing a new structure within the original building's nonconforming footprint is by-right in the following circumstances regardless of if the lot is nonconforming in terms of area, frontage/width or depth:
(a)
Structure is no taller than the previous structure within the nonconforming setbacks.
(b)
A compliant enclosed addition is allowed outside of the original footprint with a size up to a 250 square foot footprint.
(c)
Construction commences within one year of demolition.
(d)
Otherwise a special permit granted by the Zoning Board of Appeals is required.
(5)
(6)
For constructing a new structure on a vacant lot that is nonconforming in terms of area, frontage/width or depth, see Residential Lot of Record, § 12.3.
E.
For nonconforming multifamily, commercial structures and all structures other than one- or two-family structures: Allowances for the alteration including reconstruction, extension, or structural change of nonconforming structures and/or structures on nonconforming lots are governed by the following provisions and are summarized by Table 12.6 (Reconstruction, extensions or structural changes to multifamily and commercial nonconforming structures and/or structures on nonconforming lots).
(1)
(2)
Altering existing property's nonconforming height/stories, coverage, open space, floor area ratio, yard/setback area are allowed as follows regardless of if the lot is nonconforming in terms of area, frontage/width or depth:
(3)
Demolishing a structure and constructing a new structure within the original building's nonconforming footprint is allowed by special permit granted by the Zoning Board of Appeals regardless of if the lot is nonconforming in terms of area, frontage/width or depth if construction commences within one year of demolition. Otherwise it is not permitted, including if there is an increase in the structure's nonconforming dimensions.
(4)
Demolishing a structure and constructing a new conforming structure is allowed by special permit on a nonconforming lot in terms of area, frontage/width, or depth. Construction must commence within one year of demolition.
(5)
Constructing a new structure on a vacant nonconforming lot in terms of area or frontage/width is not permitted.
F.
In granting a special permit to alter a nonconforming structure the Zoning Board of Appeals must find that the alteration is not substantially more detrimental to the neighborhood than the existing nonconforming structure. In judging detriment the Board may consider without limitation impacts to the scale of the structure, context of the built environment, shading, visual effects, impacts to traffic volumes or congestion, adequacy of utilities, noise, and odor or other impacts as applicable.
§ 235-12.6 Restoration due to damage.
A.
Lawfully existing nonconforming structures that are destroyed or damaged by fire or other natural cause may be rebuilt on the original foundation with the original floor area limitations or repaired in-kind. Creation of a new nonconformity is not permitted. Alteration or extension of an existing nonconformity from the prior condition is not permitted except as otherwise allowed in this chapter.
B.
Reconstruction or repair shall commence within 24 months of the date of destruction.
§ 235-12.7 Abandonment.
A.
Any nonconforming use which has been abandoned, replaced with a conforming use or discontinued for a continuous period of two years or more shall not be recommenced. For purposes of this section, the discontinuance period shall not be broken by temporary use except when such temporary use is for a period of 60 or more consecutive days.
B.
Any nonconforming structure which has been abandoned for a continuous period of two years or more shall not be used again for any purpose except upon issuance of a special permit from the Zoning Board of Appeals. The use is considered abandoned by the visible or otherwise apparent intention of an owner to discontinue use of the structure. Lack of occupancy of a nonconforming structure alone shall not constitute abandonment and shall not preclude subsequent use of the structure for a conforming use.