Millcreek Township Erie County
City Zoning Code
City Zoning Code
ARTICLE VIII
Nonconforming Regulations
§ 145-100 Applicability and administration.
A.
This Article shall apply to all Nonconforming Uses, Structures and Lots, as defined by this Chapter. Nothing contained herein shall require any change in the overall layout, plans, construction, size or designated Use of any development, Building, Structure or part thereof for which official approval and Permits, if required, have been granted prior to the effective date of this Chapter or any amendment thereto.
B.
If boundaries of a zoning district are changed so as to transfer land from one zoning district to another, this Article shall govern Uses that thereby become nonconforming.
C.
The Zoning Officer is authorized to register Nonconforming Lots, Structures, Uses of Lots and Uses of Structures existing in the Township.
D.
When determinations are made in accordance with this Article that a Nonconforming Lot, Structure or Use of a Lot or of a Structure exists or may be altered, a record of the determination shall be maintained by the Zoning Officer in the property file.
§ 145-101 Nonconforming uses.
A.
Continuation and Sale. Where, at the effective date of adoption or amendment of this Chapter, a lawful Use of land or of a Structure exists that is made no longer permissible under the terms of this Chapter as enacted or amended, such Use may be sold or otherwise transferred to other owners and may be continued as long as it remains otherwise lawful in accordance with the provisions of this Article.
B.
Proof of Nonconforming Use. The Person or party asserting a Nonconforming Use shall be responsible for and have the burden of proof to provide evidence that the Nonconforming Use is lawful.
C.
Enlargement or Expansion by Zoning Officer.
(1)
The Zoning Officer may permit the enlargement or expansion of a Single-Family Dwelling, Detached or a public/commercial/industrial Nonconforming Use in accordance with the following criteria and limitations:
(a)
Enlargement or expansion of the Nonconforming Use shall be limited to an area not to exceed 25% of the total Gross Floor Area of the Structure or the portion of the total Lot Area that was used by the Nonconforming Use as of the date the Use became nonconforming.
(b)
There must be a need for the enlargement or expansion, such as normal growth or a need to modernize.
(c)
Enlargement or expansion of the Nonconforming Use shall be limited to the specific Lot(s) upon which the Nonconforming Use was located at the time the Use became nonconforming.
(d)
A Nonconforming Use may not be enlarged or expanded if the enlargement or expansion would create a nonconformity that is dimensional, and there shall be no natural right of enlargement or expansion.
(e)
The limits set forth herein constitute the total permitted enlargement or expansion of a Single-Family Dwelling, Detached or a public/commercial/industrial Nonconforming Use by the Zoning Officer. For example, if an applicant receives permission to enlarge or expand to a Nonconforming Use by 10%, in the future the Use will only be able to enlarge or expand by an additional 15%.
(f)
The Zoning Officer does not have the authority to permit any enlargement or expansion of a Nonconforming Use other than that which is allowed under this Section; nor do those Nonconforming Uses have a natural right of expansion.
(2)
If the Zoning Officer determines that the application fails to qualify for an expansion or enlargement, the Officer shall deny the application.
D.
Enlargement or Expansion by Zoning Hearing Board. To the extent an applicant is unable to obtain an enlargement of expansion of a Nonconforming Use under § 145-101C above, the applicant may appeal to the Zoning Hearing Board. The Zoning Hearing Board shall accept any such timely appeal and shall determine whether to grant/deny the requested relief based upon whether the expansion is necessary to the survival of the enterprise, including any need to modernize, whether there is compelling evidence of injury to the public interest and whether the request is reasonable in light of the need, the scope of the expansion and any new impact on surrounding conforming Uses.
(1)
To the extent any requested enlargement or expansion would violate any other provision of this Chapter, the applicant must seek a variance for such new nonconformity in accordance with § 145-106B(4) of this Chapter.
(2)
To the extent any requested enlargement or expansion would go beyond the portion of the Lot on which the Nonconforming Use is engaged, the applicant must seek a variance for any expansion of the Nonconforming Use beyond the area of Nonconforming Use that existed at the time the area became nonconforming in accordance with § 145-106B(4) of this Chapter.
E.
Change of Use, No Enlargement or Expansion.
(1)
A Nonconforming Use shall not be changed to any Use other than a Permitted Use, or approved Special Exception or Conditional Use, except as permitted by the Zoning Officer in accordance with the following standards:
(a)
The new Use will not be more intense (i.e., adding additional traffic, extending hours of operation, additional signage) than the existing Use and will more closely correspond to the Uses authorized in the zoning district.
(b)
The new Use will be in keeping with the character of the neighborhood in which it is located and will have an equal or lesser impact on the neighborhood than the existing Nonconforming Use.
(c)
When a Nonconforming Use is changed to a Permitted Use, or an approved Special Exception or Conditional Use, the Use thereafter shall not be changed to a Nonconforming Use. Any change from one Nonconforming Use to a Permitted Use, or approved Special Exception or Conditional Use, shall comply with the parking requirements of Article VII of this Chapter for the new Use and shall be subject to the area, bulk and Buffer Area regulations for such Use in the zoning district where such Use is authorized as a Permitted Use, Conditional Use or Use by Special Exception.
F.
Abandonment.
(1)
When a Nonconforming Use of a Structure and/or Lot is discontinued for a period of 12 consecutive months, it is presumed that there is an intent abandon the Nonconforming Use. In addition, if the Township can also establish that the Nonconforming Use has actually been abandoned by overt acts, the failure to act or statements, the Structure and/or Lot shall not thereafter be used, except in conformance with the regulations of the zoning district in which it is located.
(2)
Abandonment does not apply to Lots wherein the owner can provide proof, when requested, to the Zoning Officer that a new tenant or owner is actively being sought.
G.
Damage or Destruction. In the event that a Nonconforming Use in any zoning district is destroyed or partially destroyed by fire, flood, explosion or other casualty, such Nonconforming Use shall be permitted to be rebuilt or restored, provided it meets the following requirements:
(1)
The Structure(s) shall be properly secured after the damage or destruction.
(2)
A Building Permit shall be obtained within one year of the date of casualty, unless the Zoning Officer grants a six-month time extension for good cause. Only two time extensions may be granted.
(3)
Work is completed before the Building Permit expires.
§ 145-102 Nonconforming structures.
[Amended 9-10-2024 by Ord. No. 2024-7]
A.
Structural Alteration. A Nonconforming Structure may be enlarged or structurally altered, provided the enlargement or alteration does not encroach any further into a dimensional requirement than the existing Nonconforming Structure does and, further provided that no new nonconformities are created. To the extent such enlargement or alteration increases or creates a nonconformity, such change shall only be allowed if the Zoning Hearing Board grants a variance in accordance with § 145-106B(4) of this Chapter. Any impact on an existing Nonconforming Use of the Nonconforming Structure shall be evaluated under § 145-101.
B.
Damage or Destruction. In the event that a Nonconforming Structure is partially damaged or entirely destroyed by any means, it may be rebuilt or repaired in accordance with the following:
(1)
The Nonconforming Structure may be rebuilt or repaired provided the enlargement or alteration does not encroach any further into a required Setback than the existing Nonconforming Structure does and, further provided that no new nonconformities are created. To the extent such enlargement or alteration increases a nonconformity, such change shall only be allowed if the Zoning Hearing Board grants a variance in accordance with § 145-106B(4) of this Chapter.
(2)
A Nonconforming Structure that encroached on the Setback requirements for the zoning district in which the Nonconforming Structure is located may be rebuilt or repaired only to the extent of its existing foundation. Any request to increase a nonconformity shall only be allowed if the Zoning Hearing Board grants a variance in accordance with § 145-106B(4) of this Chapter.
(3)
The Structure shall be properly secured after the damage or destruction.
(4)
A Building Permit shall be obtained within one year of the date of casualty, unless the Zoning Officer grants a six-month time extension for good cause. Only two time extensions may be granted.
(5)
Work is completed before the Building Permit expires.
C.
Moving. Should a Nonconforming Structure be moved for any reason for any distance whatsoever, it shall thereafter conform to the requirements of the zoning district to which it is relocated.
E.
Signs.
(1)
Nonconforming Signs may be repaired or reconstructed, provided that no Structural Alterations are made which increase the gross surface area of the Sign as measured in § 145-78B of this Chapter.
(2)
Nonconforming Signs shall not be enlarged, added to or replaced by another Nonconforming Sign, Use or Structure, except that the interchange of poster panels shall be permitted.
(3)
Replaced or repaired Signs shall be of equal or lesser dimensions and constructed of the same, or similar durable material than the Sign being replaced or repaired and shall contain no other improvements or additions.
(4)
Nonconforming Signs shall not be moved to a different location unless the Zoning Hearing Board finds that a relocation on the Lot is necessary to comply with law.
F.
Repair or Maintenance. Nothing in this Chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any Structure or part thereof declared to be unsafe by any official Township official responsible for protecting the safety of the public, provided all other requirements of this Section are met.
§ 145-103 Nonconforming lots.
A.
Any Lot of record existing at the effective date of this Chapter and held in separate ownership different from that of the adjacent Lots may be developed in accordance with the requirements of the zoning district of the Lot of record.
B.
Where two or more adjacent Lots of record with continuous frontage have less than the required area and width and are held by one owner, the Lots shall be legally combined by deed and recorded at the County Recorder of Deeds Office for the purpose of complying with this Article. No division of any Lot shall be made which does not comply with the requirements of this Article. Any change in Lot Lines necessary to meet the minimum requirements of this Article shall constitute a revision to the recorded plan and shall meet all applicable requirements of the Chapter 125, Subdivision and Land Development.
C.
Where Structures exist on adjacent Nonconforming Lots of record which have Front Yards less than the minimum depth required, the minimum Front Yard shall be the average depth of the Front Yards on the adjacent Nonconforming Lots.