Middletown City Zoning Code
ARTICLE V
Nonconforming Uses and Buildings
§ 475-44 Continuation; restrictions.
The lawful use of any building or land existing at the time of the enactment of this chapter may be continued although such use does not conform to the provisions of this chapter, except as herein specifically otherwise provided.
A.
Lawful use. A use is not to be considered lawful if it was maintained or operated in violation of any federal or state statute or regulation or in violation of any ordinance of the City of Middletown in effect prior to the enactment of this chapter, excepting, however, that uses lawfully nonconforming under the prior zoning ordinance may be continued unless specifically disallowed hereinbelow.
B.
Extensions. A nonconforming use shall not be extended, but the extension of a lawful use to any portion of a nonconforming building which existed prior to the enactment of this chapter shall not be deemed the extension of such nonconforming use.
C.
Construction approved prior to adoption of or amendment to chapter. Nothing herein contained shall require any change in plans, construction or designated use of a building for which a building permit has been heretofore issued and the construction of which shall have been diligently prosecuted within three months of the date of such permit, and the ground-story framework of which, including the second tier of beams, shall have been completed within six months of the date of the permit, and which entire building shall be completed according to such plans as filed within one year from the date of this chapter.
D.
Discontinuance. Whenever a nonconforming use has been discontinued for a period of one year, after the adoption of this chapter, such use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this chapter.
E.
Changes. Once changed to a conforming use, no building or land shall be permitted to revert to a nonconforming use. A nonconforming use may be changed to a use of the same or higher classification (for example, if in an R-2 Zone there exists a legal nonconforming use which normally would only be allowed in a C-3 Zone as a permitted use, then such use may be changed to another use which would be allowed as a permitted use in a C-3 Zone), and such use thereafter shall not be changed to a lower classification.
F.
Displacement. No nonconforming use shall be extended to displace a conforming use.
G.
Plans previously approved. Nothing herein contained shall require any change in plans, construction or designated use of lands or buildings where they have been already approved by the Planning Board or the Zoning Board of Appeals, and permits for the use or building in conformance with said approved plans shall be issued by the Department of Public Works, provided that applications for such permits shall be made within one year from the date of adoption of this chapter and all work contemplated by such permit is completed within 1 1/2 years from the date of adoption of this chapter.
H.
Subdivision plots previously approved. Notwithstanding any inconsistent provision of this chapter or any amendment hereof, lots shown on previously approved subdivision plots shall not, for the period of time prescribed in § 83-a of the General City Law, be in any way affected by this chapter if such lots have become nonconforming lots by the provisions of this chapter, and the provisions of § 83-a shall apply to all lots shown on such subdivision plots.
I.
Extension, alteration, replacing or rebuilding nonconforming uses or buildings. Notwithstanding any inconsistent provision of this chapter, any nonconforming use may be extended, and any nonconforming building, or any building in which is contained a nonconforming use, may be altered, extended, replaced or rebuilt, regardless of the extent thereof, provided application for the same and plans thereof are submitted to the Planning Board in accordance with the provisions of § 475-53. The Planning Board may approve the application upon such conditions, limitations and safeguards as it deems best for the public interest, excepting, however, that any nonconforming building or use shall not be restored for other than a conforming use after damage for any reason exceeding 75% of its market value, unless the Planning Board approves such restoration to the nonconforming use; if the restoration of a building whose damage does not exceed 75% of its market value is not completed within a one-year period, the nonconforming use of such building, or the nonconformity of the building itself, shall be deemed to have been discontinued.
J.
Amortization. Notwithstanding any other provisions of this chapter, each of the nonconforming uses specified in this subsection is deemed sufficiently objectionable, undesirable, and out of character in the district in which such use is located as to depreciate the value of other property in the district, and impair the proper use thereof, and to blight the proper and orderly development and general welfare of such district and the City, to the point that each such nonconforming use shall be terminated at the expiration of the periods provided hereinbelow for the specific purpose of permitting the amortization of the remaining investment or cost, if any, of such uses:
(1)
Any boardinghouse in existence in any R-1, R-2, OR-2, SR-3A, SR-3B or C-1A District as of the date of enactment of this chapter shall, at the expiration of five years from such date, or upon the death of the owner thereof, or upon the transfer of ownership thereof, whichever occurs first, become a prohibited and unlawful use and shall be discontinued, excepting, however, that this subsection shall not apply to any boardinghouse which is owner-occupied and which has received a special use permit from the Planning Board or Common Council prior to the enactment of this chapter.
(2)
Any rental by an owner of a one- or two-family or multiple dwelling, or by a tenant thereof, of a room or rooms to a boarder or lodger in any residential or commercial district at the date of enactment of this chapter shall, at the expiration of three years from such date, or upon the death of the owner thereof, or upon the transfer of ownership thereof, whichever occurs first, become a prohibited and unlawful use and shall be discontinued, excepting, however, that this subsection shall not apply to any dwelling unit which is owner-occupied and which received a special use permit from the Planning Board or the Common Council prior to the enactment of this chapter.
(3)
Any adult use in existence in any district other than an I-3 District as of the date of enactment of this chapter shall, at the expiration of five years from such date, or upon the death of the owner thereof, or upon the transfer of ownership thereof, whichever occurs first, become a prohibited and unlawful use and shall be discontinued, excepting, however, that this subsection shall not apply to any adult use which has received a special use permit from the Planning Board or Common Council prior to the enactment of this chapter.
(3.5)
Any multiple dwelling in existence as of the date of enactment of this Subsection J(3.5) shall, at the expiration of three years from such date, become a prohibited and unlawful use and shall be discontinued, excepting, however, that this subsection shall not apply to any multiple dwelling which is owner-occupied, and further excepting that this subsection shall not apply to any multiple dwelling which is contained in a mixed commercial and residential building, and further excepting that this subsection shall not apply to any multiple dwelling for which it is structurally unreasonable to convert into a lawful use in the subject zoning district. The determination as to whether it is structurally unreasonable to convert a particular multiple dwelling into a lawful use shall be made by the Commissioner of Public Works.
[Added 7-13-2009; amended 3-4-2014]
(4)
If, on application made at least 90 days before the expiration of the periods described in Subsection J(1), (2), (3) and (3.5) above for termination of a nonconforming use, the Zoning Board of Appeals shall find that the period prescribed is not reasonable and adequate for such amortization, the Zoning Board of Appeals may grant up to a five-year extension of any period of time described in Subsection J(1), (2), (3) and (3.5) above; provided, however, that no such extension period shall exceed five years and provided, further, that no more than one application for an extension may be considered or granted for any nonconforming use.
[Amended 7-13-2009]
K.
Variances previously granted. Notwithstanding any inconsistent provisions of this chapter, including Subsection J hereinabove, this chapter shall not apply to any use or area variances granted by the Planning Board or Zoning Board of Appeals before the adoption of this chapter, and said variances shall continue as such, subject to the conditions, limitations and safeguards set at the time such variances were granted.