Polk Township City Zoning Code
ARTICLE IX
Nonconformities
§ 400-901 Purpose, applicability, registration, and continuation and change.
A.
Purpose. It is the purpose of this article 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 the 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 Township from regulating the change, alteration, reconstruction, reestablishment, extension, destruction and abandonment of nonconforming uses in accord with the Pennsylvania Municipalities Planning Code[1] 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 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.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
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 § 400-903 or 400-904. 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.
§ 400-902 Definitions.
As used in this article, 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 Monroe County Recorder of Deeds prior to the effective date of this chapter, as amended.
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.
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 hereto, where such use was lawfully in existence prior to the enactment of this chapter, as amended.
The conversion of a nonconforming use to a different use classification as enumerated on the Schedule of Uses.
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 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.
§ 400-903 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 hereto, shall be considered nonconforming.
§ 400-904 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.
§ 400-905 Normal maintenance and repair activities.
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.
§ 400-906 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 § 400-1209 and the review factors in § 400-912.
(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 the Zoning Ordinance 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 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.
(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.
C.
Other standards. All changes to nonconforming uses shall also be subject to all other applicable standards in this chapter.
§ 400-907 Extension of nonconforming uses.
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 50% of land and 50% of structure beyond what existed on September 9, 1985. 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 Board shall consider past operating performance in making its decision.
§ 400-908 Reconstruction.
A.
Time limit. If any nonconforming structure is damaged or condemned it may be restored or reconstructed to its preexisting condition of nonconformity, provided:
C.
Extension. The Zoning Officer may, for good cause shown by the owner, grant a one-time extension of not more than one year for the reestablishment of the nonconforming use. Said extension shall only be considered by the Board upon written application for same submitted by the property owner.
D.
Demolition. If a nonconforming structure is voluntarily demolished, it may be reconstructed within the footprint of the nonconforming structure demolished. Such reconstruction will be subject to § 400-910C. If a nonconforming use is voluntarily demolished to an extent which exceeds 50% of the cost to replace the entire structure or use in accord with the most current construction standards, the reconstruction shall comply with current setback, lot coverage, height and other requirements of this article.
[Amended 5-20-2019 by Ord. No. 2019-04]
§ 400-909 Abandonment and reestablishment of nonconformities.
A.
Abandonment. Unless extended in accord with this § 400-909, if a nonconforming use of land or structure ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of 18 consecutive 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. 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 Board in accord with the Township Comprehensive Plan and the standards in § 400-1209, grant a one-time extension of not more than one year for the reestablishment of the nonconforming use. Said extension shall only be considered by the Board upon written application for same submitted by the property owner.
§ 400-910 Alterations and expansions of nonconforming structures.
A.
Alterations. The alteration or expansion of nonconforming structures shall be permitted only in accord with this § 400-910.
B.
Procedure for 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 §§ 400-906 and 400-907, respectively.
C.
Nonconforming setbacks. A structure which is nonconforming as to a setback requirement may be extended along the nonconforming setback line a distance not to exceed 50% of the length of the nonconforming part of the structure as it existed at the effective date of this chapter.
D.
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.
§ 400-911 Use of nonconforming lots of record.
A.
Lots in separate ownership.
(1)
Single-family dwelling. A nonconforming lot which was lawful when created and which, prior to September 9, 1985, the effective date of this chapter, was separated in ownership from any adjoining tracts of land, may be used for a single-family dwelling in any district where such use is permitted, provided such lot shall be developed in conformity with all applicable requirements other than minimum lot area, lot widths and setbacks. Such lots shall comply with the Schedule of Development Standards referenced in § 400-405C.[1]
[Amended 5-20-2019 by Ord. No. 2019-04]
[1]
Editor's Note: Said schedule is included as an attachment to this chapter.
(2)
Other uses. A nonconforming lot which was lawful when created and which, prior to September 9, 1985, the effective date of this chapter, was separated in ownership from any adjoining tracts of land may be developed with a structure to be used by a conforming use, provided that all requirements for such structure and use, including setback requirements, are met except for lot area and lot width requirements.
B.
Lots in single ownership. If two or more nonconforming lots or parts thereof having adjoining frontage or otherwise being adjoining and having single ownership as recorded at the Monroe County Courthouse, and if all or part of the said lots do not meet the requirements established for lot width and/or area, the lots shall be considered by the Township to be a single lot for the purposes of the application of the Polk Township's Code, and no conveyance or division of any such lot shall be made which creates or continues lot width and/or area below Township requirements. Prior to the issuance of any permits required pursuant to this chapter or any other ordinance of Polk Township, the lots shall be combined into one lot in accord with Chapter 345, Subdivision and Land Development.
(1)
In the event that one or more of such lots are improved with a dwelling, the following procedure shall apply:
[Added 5-20-2019 by Ord. No. 2019-04]
(a)
If one of such lots is improved with a single dwelling, the lots shall be considered a single lot as is stated in Subsection B
(b)
In the event that such lots are improved with two or more dwellings, such lots shall be considered into single ownership proportionally to the number of dwellings located upon them. By way of illustration, if two dwellings are located on two lots in single ownership along with four adjacent lots in the same ownership, two of such vacant lots would be considered in single ownership with each of the lots improved with the dwelling. In the event of an odd number of lots, the odd lot shall be considered part of one of the combined lots as described above as owner may elect.
[Amended 8-26-2024 by Ord. No. 2024-04[2]]
[2]
Editor's Note: This ordinance also repealed former Subsection B(1)(c), regarding an odd number of lots or dwellings, which immediately followed this subsection.
(2)
The following shall be exempt:
[Added 2-28-2022 by Ord. No. 2022-02]
(a)
A lot that is at least one acre, provided all adjoining lots are in the same ownership are a minimum of one acre.
(b)
When fire or natural disaster has rendered a single-family residence unfit for human habitation, this property shall not be required to join lots for rebuild/restoration purposes. This exemption shall not apply to accessory structures.
C.
Lots with community sewage or community water. Nonconforming lots, which were lawful when created and which contain 0.30 acre or more, that are served by a community sewage disposal system or a community on-lot water supply system, may be used for a single-family dwelling in any district where such use is permitted, provided such lots shall be developed in conformity with all applicable district regulations. Nonconforming lots, which were lawful when created and which contain less than 0.30 acre, require a variance.
D.
Building and lot coverage. Any new or proposed structure, use or occupancy on a preexisting nonconforming residential lot with a gross area of less than one acre shall have a resulting maximum building coverage of not more than 25% and a maximum lot coverage of not more than 40% of the total gross lot area.
E.
Accessory buildings or structures. Any new or proposed accessory building or structure on a preexisting nonconforming lot shall refer to the Schedule of Development Standards referenced in § 400-405C.[3]
[Amended 5-20-2019 by Ord. No. 2019-04]
[3]
Editor's Note: Said schedule is included as an attachment to this chapter.
F.
Nonconformity of irregularly shaped lots, flag lots and cul-de-sac lots. In order to determine the nonconforming status of irregularly shaped lots, flag lots and cul-de-sac lots, the minimum lot width specified in the district shall be measured at the rear line of the required front setback, provided that in no case shall the lot frontage measured at the street right-of-way line be less than 70% of the minimum lot width, except as follows:
(1)
Lots along the turnaround of a cul-de-sac street shall have a lot frontage measured along the street right-of-way of not less than 45% of the minimum required lot width.
(2)
Lots along the outside of a curve with a radius of 175 feet or less shall have a frontage measured along the street right-of-way of not less than 65% of the minimum required lot width.
(3)
For a flag lot or a lot with a private access street, the lot width shall be measured along the rear line of the required front setback, applied to the main body of the lot.
 |
§ 400-912 Review factors.
In addition to the standards in § 400-1209, Article VII, and other applicable requirements, the Township 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)
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 § 400-912B(2) below.
(2)
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 a 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 § 400-702C.
(3)
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.
(4)
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 § 400-702C.
(5)
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.