Port Chester City Zoning Code
ARTICLE 9
Nonconformities
§ 345-901 Nonconformities.
A.
General.
(1)
Legally Existing Uses, Structures, Lots, Etc. Except as otherwise provided in this chapter, a Use, Structure, Lot, Sign, or Security Grill of any of the following types that legally existed as of the Effective Date of this chapter, any amendment of this chapter or any amendment to the Zoning Map, may be continued as a legal nonconformity in accordance with the provisions of this § 345-901 and certification by the Zoning Administrator pursuant to § 345-803D:
(2)
Proof of Nonconformity. The burden of establishing the prior existence of a nonconformity is on the applicant. When applying for any permit or approval related to a nonconformity, the applicant shall be required to submit evidence of a prior permit or other documentation showing that the nonconformity existed prior to the date on which it became nonconforming.
(3)
Illegality. Any Use, Structure, Lot, Sign, or Security Grill that was illegal prior to the Effective Date of this chapter or the Zoning Map remains illegal if it does not conform to the provisions of this chapter or Zoning Map.
(4)
Ordinary Maintenance or Repair. Notwithstanding any other provision of this chapter, Ordinary Maintenance or Repair may be done without affecting the lawful nonconforming status of a Use or Structure.
B.
No Change in Nonconforming Use of Land. No Nonconforming Use may be enlarged, increased, or extended to occupy more land than that occupied by such Use on the Effective Date of this chapter, any amendment of this chapter, or any amendment to the Zoning Map, nor may any such Nonconforming Use be moved in whole or in part to any other portion of the Lot or parcel of land occupied by such Nonconforming Use at such time.
C.
Cessation of Nonconforming Use of Land. If a Nonconforming Use of land, or any portion thereof, ceases for any reason for any continuous period of more than 12 months or is changed to a conforming Use, any future Use of the land must conform to the provisions of this chapter.
D.
Nonconforming Use.
(1)
Damage or Destruction of Structure. If any Structure used for a Nonconforming Use is damaged or destroyed by any means:
(a)
To an extent of more than 50% of the Full Value of the Structure, no reconstruction or repairs may be made unless the Use of every portion of the Structure is made to conform to this chapter; or
(b)
To an extent of 50% or less of the Full Value of the Structure, it may be reconstructed or repaired to its previous condition and the Nonconforming Use continued, so long as the nonconformity is not expanded, no new nonconformity is created, and if the reconstruction or repair is started within one year of such damage or destruction and is diligently pursued to completion.
(2)
Extension of Nonconforming Use. Any such Nonconforming Use may be extended throughout any parts of the Structure that were manifestly arranged or designed for such Use as of the Effective Date of this chapter, any amendment of this chapter, or any amendment to the Zoning Map.
(3)
Change to Another Use. If no Alterations are made, a Nonconforming Use may be changed to another Nonconforming Use which, in the determination of the Zoning Board of Appeals, either by general rule adopted on a request by the Planning and Economic Development Zoning Administrator or on a specific finding on appeal of a particular case, is of the same or of a more restricted nature.
(4)
Cessation of Nonconforming Use. If any Nonconforming Use, in whole or in part, ceases for any reason for a continuous period of one year or more then the legal status of such Nonconforming Use shall terminate and any future Use of such Structure must conform to this chapter.
(5)
Removal of Structure Used for Nonconforming Use. If any Structure in or on which any Nonconforming Use is conducted or maintained is removed, the subsequent Use of the land on which such Structure was located and the subsequent Use of any Structure thereon must be made to conform to this chapter.
E.
Nonconforming Structures.
(1)
Damage or Destruction of Structure. If any Nonconforming Structure is damaged or destroyed by any means:
(a)
To an extent of more than 50% of the Full Value of the Structure, no reconstruction or repairs may be made unless every portion of the Structure is made to conform to this chapter; or
(b)
To an extent of 50% or less of the Full Value of the Structure, it may be reconstructed or repaired and the legality of the Nonconforming Structure continued, if the reconstruction or repair is started within one year of such damage or destruction and is diligently pursued to completion.
(2)
Cessation of Use of Nonconforming Structure. If any Nonconforming Structure ceases to be in use for any reason for a continuous period of one year or more or is changed to a conforming Structure, or if the Structure is moved for any distance whatever, for any reason, then the legal status of such Nonconforming Structure shall terminate.
(3)
Removal of Nonconforming Structure. If any Nonconforming Structure is removed, any subsequent Structure must conform to this chapter.
F.
Nonconforming Lots.
(1)
Lots Subject to Conveyance. A Building Permit may be issued for the erection of a Structure on a Lot or other parcel for which a valid conveyance or contract of sale has been executed or delivered prior to the Effective Date of this chapter, or any amendment of this chapter, or any amendment of the Zoning Map, even though the area or dimensions of such Lot or parcel are less than that required by this chapter if:
(a)
All other standards and requirements of this chapter are met; and
(b)
The owner of such Lot or parcel does not also own or have other Lots or parcels contiguous thereto under option or contract to purchase as of the Effective Date of this chapter, any amendment of this chapter, or any amendment of the Zoning Map.
(2)
Combination of Lots Required. In the case of § 345-901F(1)(b), such other Lots or parcels, or as much thereof as may be necessary, must be combined with the original Lot or parcel to make a single property, whereupon a Building Permit for the erection of a Structure may be issued if all other requirements of this chapter are met.
G.
Nonconforming Signs.
(2)
Amortization of or Compensation for Nonconforming Sign Subject to Removal. For any Nonconforming Sign that is required to be removed pursuant to this section, the Planning Commission, at its discretion, may either:
(a)
Allow such Sign to remain for an amortization period of one year after the Effective Date of this chapter or such longer period as may be established pursuant to § 345-901G(3); or
(b)
Require immediate removal of such Sign and compensate the owner thereof for the fair market value of such Sign as of the Effective Date of this chapter, as determined by a qualified, independent appraiser selected pursuant to § 345-901G(4).
(3)
Extension of Time for Removal.
(a)
Application by Owner. Any owner of any such nonconforming unlawful Sign, who alleges that the amortization period herein provided is unreasonable as to such Sign, may apply to the Planning Commission for an extension of time for amortization of such Sign.
(b)
Determination by Planning Commission.
[1]
The Planning Commission shall determine a reasonable amortization period for the Sign, based on the following as provided by a qualified, independent appraiser selected pursuant to § 345-901G(4):
(4)
Appraiser. In any case in which an appraiser is required to provide a cost, value, or useful life of a Sign pursuant to this § 345-901, such appraiser shall be selected by agreement of the Planning Commission and the Sign owner, provided that if the parties do not agree on an appraiser within 30 days of the application for extension of the amortization period, an appraiser selected by the Planning Commission shall provide the appraisal.
(5)
Conflict with New York State Law. Notwithstanding anything to the contrary contained or implied in this § 345-901, if there is any conflict between this section and any applicable provision of either the New York General Municipal Law § 74-c or the New York Highway Law § 88, such provision of New York State law shall control.
H.
Nonconforming Security Grills.
(1)
Removal. Anything to the contrary in this chapter notwithstanding, all preexisting Security Grills that are not in compliance with this chapter must be removed, except as provided in this § 345-901.
(2)
Amortization of or Compensation for Nonconforming Security Grill Subject to Removal.
(a)
Within 30 days of the Effective Date of this chapter, a person aggrieved by application of § 345-901H(1) may make application to the Planning Commission on a form provided for such purpose, for additional time to achieve compliance on proof of hardship due one or more of the following factors:
[1]
The nature of an establishment with special security concerns (e.g. banks, drugstores, liquor stores);
[2]
Official documentation of recent criminal activity against the aggrieved establishment;
[3]
Significant financial hardship, verified by the date and cost of the original installations that would be incurred by the aggrieved property or business owner as a result of the termination of the prohibited Security Grill; and
[4]
Any other relevant factor the aggrieved property or business owner is able to demonstrate as a significant hardship.
(b)
Any such extension of time shall run with the occupancy for which it was approved.
I.
Alternate Method of Legal Nonconforming Use and/or Legal Nonconforming Building or Structure. This § 345-901I affords potential relief to property owners who can establish a Nonconforming Use and/or Building or Structure preexisted without interruption for a continuous period of 10 years or more prior to January 1, 2010, that would otherwise require some area and/or Use Variance from the requirements under the applicable zoning regulation. Upon the satisfaction to the Building Zoning Administrator under the requirements of this § 345-901I, the Use, Building, or Structure may be deemed lawfully Nonconforming.
(1)
Eligibility. To be eligible for such determination, all of the following standards must be strictly satisfied through the building permit process.
(a)
The Use, Building, or Structure is occupied as a Single- or Two-Family Dwelling;
(b)
No Building Permit has been issued for a complying Use;
(c)
The Building or Structure must be preexisting and have been issued a lawful Building Permit or other substantive documentation from the Village or any other bona fide documentation as to the existence of the Use and/or Building or Structure preexisting without interruption for a continuous period of 10 years or more prior to January 1, 2010.
(d)
Such documentation shall include tax records showing said Use and/or the Use and/or structure preexisting without interruption for 10 years or more prior to January 1, 2010.
(e)
The Use, Building, or Structure has not been the subject of code enforcement action, which shall include a Notice of Violation.
(2)
Other Compliance. An applicant must nevertheless comply with the applicable requirements of the New York Fire Prevention and Building Code and Multiple Residence Law through the Building Permit process.
(3)
Certificate of Occupancy. A successful applicant must obtain the required Certificate of Occupancy within two years of the issuance of a Building Permit or forfeit his or her eligibility under this section.