Milford City Zoning Code
ARTICLE IX
Nonconformities
§ 312-50 Purpose; applicability; registration; and sale, continuation and change.
Purpose.
It is the purpose of this article to recognize that if, prior to the adoption of the original Milford Borough Zoning Ordinance, as amended, reenacted and replaced, property was used for a then lawful purpose or in a then lawful manner which such Zoning Ordinance 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 Borough 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.
It is also the purpose of this article 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, when failure to allow such change, alteration, reconstruction, reestablishment, or extension would itself lead to neighborhood or district deterioration.
It is further the purpose of this article 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. The following are regulations which shall apply:
Applicability. The provisions and protections of this Article IX shall apply only to those nonconforming lots, structures and uses which legally pre-existed the applicable provisions of this chapter or which are recognized by § 312-51 or 312-52 of this Article IX. 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.
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. The Zoning Officer may submit any application for a Certificate of Nonconformance to the Planning Commission for its review and recommendation with regard to the evidence of nonconformity.
Sale, continuation and change. A lawful nonconforming lot, structure or use as defined by this chapter may be continued and if sold, be continued by the new owners. Any expansion, alteration, extension or change in a nonconformity shall only proceed in compliance with this article.
§ 312-51 Definitions.
As used in this section, the following terms shall have the meanings indicated:
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 County Recorder of Deeds prior to the effective date of the original Milford Borough Zoning Ordinance, as amended, reenacted and replaced.
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 adoption of the original Milford Borough Zoning Ordinance, as amended, reenacted and replaced; and including, but 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 a structure, which does not comply with the applicable use provisions in this chapter or amendments thereto, where such use was lawfully in existence prior to the adoption of the original Milford Borough Zoning Ordinance, as amended, reenacted and replaced.
The conversion of a nonconforming use to a different use classification as enumerated on the Schedule of Uses of this chapter.
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.
The reopening or re-initiation 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.
§ 312-52 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 ordinances 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 thereto, shall be considered nonconforming.
§ 312-53 Nonconformities by variance.
A building, structure or use allowed by variance in a district where it is nonconforming with any regulations of this chapter shall be considered nonconforming for the purposes of this chapter.
§ 312-54 Normal maintenance and repair activities; conforming use enlargement.
Normal maintenance and repair. 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 nonconformity, 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.
Conforming use or building on a nonconforming lot.
Any conforming use or building on a nonconforming lot may be repaired, maintained, restored or rebuilt to the same dimensions existing at the time that the use or building was originally constructed or started.
Any enlargement or addition to any conforming use on a nonconforming lot must comply in all respects with the regulations of this chapter, except that in the case of any enlargement or addition of buildings legally existing at the effective date of this chapter, the maximum building coverage requirements of the Schedule of Development Standards shall not apply, provided, however, that all of the off-street parking and loading requirements of this chapter shall be complied with. In such a case the maximum building coverage shall not exceed 80% for commercial and manufacturing buildings or 60% for residential buildings.
§ 312-55 Changes of nonconforming uses.
Special exceptions; standard.
Special exceptions. All changes of nonconforming uses shall be considered special exceptions subject to the specific procedures and review criteria for special exceptions and the review factors in § 312-60.
Standard. 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 Council in accord with the classification in the Schedule of Uses in Article IV. 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 the Zoning Ordinance to eliminate incompatible uses from specific Districts. For example, a change from a nonconforming retail store in the R-1 District to a bank may be permitted; however, a change to a manufacturing use would not be permitted.
Conforming changes and conversions.
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 in 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.
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.
Other standards. All changes to nonconforming uses shall also be subject to all other applicable standards in this chapter.
§ 312-56 Enlargement of nonconforming uses.
[Amended 10-6-2008 by Ord. No. 394]
Special exceptions. All enlargements 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 for special exceptions and the review factors in § 312-60 of this article.
Enlargement onto other properties of record in the same ownership. A nonconforming use may only be extended onto a new property of record if that property is contiguous to the existing location, the properties were both under the same ownership as of the effective date of this chapter, the owner has clearly exhausted the alternatives available for expansion on the existing property, and the use is not one which has been altogether prohibited as a new use under this chapter.
Enlargement limitation. A nonconforming use shall not be enlarged by more than 50% beyond the area of land or structure legally occupied by the use. Such enlargement shall not result in an increased nonconformity of setback, height, lot coverage or other area or bulk standard.
Increase in area or bulk nonconformity. In the case where a proposed enlargement 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.
Prohibited enlargements. If the use proposed for enlargement is deemed by the Borough 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 enlargement shall be denied. The Borough shall consider past operating performance in making its decision.
§ 312-57 Reconstruction.
Time limit. If any nonconforming structure or use is damaged or razed, it may be restored or reconstructed to its preexisting condition of nonconformity (but no increase in nonconformity), provided the application for a building permit is submitted within 12 months of the date of the casualty or razing; and, it complies with all other applicable ordinances (e.g., flood regulations).
§ 312-58 Abandonment and reestablishment of nonconformities.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
If a nonconforming use of land or structure ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of 12 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. The Zoning Officer may notify, in writing, the title owner of the land and/or structure that the twelve-month period has expired. 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.
§ 312-59 Alterations and expansions of nonconforming structures.
[Amended 10-6-2008 by Ord. No. 394]
Alterations. The alteration or expansion of nonconforming structures shall be permitted only in accord with this § 312-58.
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 enlargement of a nonconforming use as regulated by §§ 312-54 and 312-55, respectively.
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.
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.
§ 312-60 Use of nonconforming lots of record.
[Amended 12-7-2009 by Ord. No. 403; at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
In any district where a nonconforming lot exists, development of the nonconforming lot shall be permitted if the applicant can present evidence that any proposed development on the nonconforming lot shall conform to all minimum yards, height of building, lot coverage and other applicable regulations as prescribed by the Schedule of Development Standards and this chapter. A variance shall be required for any proposed development of a nonconforming lot which is not in compliance with chapter requirements. In addition, any proposed development requiring on-lot sewage disposal must produce evidence that the nonconforming lot qualifies to receive a sewage disposal permit and that this lot meets the minimum state standards and requirements for safe and healthy disposal of such waste. The burden of proof for all aspects of this application rests with the applicant.
§ 312-61 Review factors.
In addition to other applicable standards, the Borough shall consider any nonconformity special exception application in terms of the effect on the following factors:
Traffic generation.
Noise, dust, fumes, gases, odor, glare, vibration, fire and explosion hazards and other nuisances.
Amount and nature of outdoor storage.
Hours of operation.
Compatibility with the character of the surrounding neighborhood.
Potential of the expansion to reduce existing congestion and alleviate parking shortages by improved site design, addition of parking and improved loading areas.
§ 312-62 Termination.
Certain types of nonconforming uses or structures which present a special nuisance or hazardous condition shall be terminated in accord with this § 312-61. Upon a complaint registered by the Zoning Officer, which use is considered to be a legal nuisance or a hazard to the public health, safety, welfare and morals of uses or to structures adjoining such nonconforming use or uses, the Zoning Hearing Board shall hold a public hearing and make a finding with respect to the nuisance or hazardous condition which exists and shall determine the necessity of terminating such nonconforming use. Such uses shall be terminated within such reasonable time as shall be determined by the Zoning Hearing Board as related to the reasonable amortization of the capital investment in such uses.