Town Of Dewitt City Zoning Code
ARTICLE XVIII
Nonconforming uses
§ 192-111 Purpose.
A.
This section regulates and limits the continued existence of uses, structures or other improvements established prior to the effective date of this chapter that do not conform to the regulations of this chapter applicable in the zoning districts in which such nonconformities are located.
B.
The zoning districts established by this chapter are designed to guide the future use of the Town's land by encouraging the development of desirable residential, mixed-use and industrial areas with appropriate groupings of compatible and related uses and thus to promote and protect the public health, safety and general welfare.
C.
The continued existence of certain nonconformities is frequently inconsistent with the Comprehensive Plan, and thus the gradual elimination of such nonconformities is desirable. Other nonconformities may continue to exist and afford adaptive reuse opportunities that can contribute to neighborhood character, diversity and services.
D.
The regulations of this section are intended to restrict further investments that would make nonconformities more permanent in their location in inappropriate districts or locations as well as to afford opportunities for creative use and reuse of those other nonconformities that contribute to a neighborhood and are consistent with the goals of the Comprehensive Plan.
§ 192-112 Nonconforming use.
A.
Authority. Any lawfully existing nonconforming use may be continued so long as it remains otherwise lawful, subject to the regulations contained in this section. Ordinary repair and maintenance or replacement, and installation or relocation of nonbearing walls, nonbearing partitions, fixtures, wiring or plumbing, may be performed.
B.
Structural alteration or enlargement. No structure shall be structurally altered or enlarged unless the use thereof shall thereafter conform to the use regulations of the zoning district in which it is located. No parking, yard, space or bulk nonconformity may be created or increased.
C.
Damage or destruction.
(1)
When a structure is damaged or destroyed, by any means not within the control of the owner, to the extent of more than 50% of the cost of replacement of the structure new, the structure shall not be restored except where the structure so damaged or destroyed is a single-family residential structure and/or its accessory structure(s), and the use of the structure(s) is single-family residential use, without regard to the zoning district in which the structure(s) is located. In such a case, the structure(s) may be replaced, rebuilt or repaired upon the issuance of a specific use permit from the Zoning Board of Appeals pursuant to § 192-123 and provided that:
[Amended 11-22-2010 by L.L. No. 1-2011]
(2)
When a structure is damaged or destroyed by any means not within the control of the owner thereof to the extent of 50% or less of the cost of replacement of the structure new, repair or restoration of such structure may be made; provided, however, that:
(3)
In no event shall any damage or destruction to such a structure by means within the control of the owner be repaired or restored except in accordance with this chapter.
D.
Moving. No structure or use of land shall be moved in whole or part, for any distance whatsoever, to any other location on the same or any other lot, unless the entire structure and/or use conform to all regulations of the zoning district in which it is located after being so moved.
E.
Expansion of use. No use shall be expanded or enlarged or increased in intensity. Such prohibited activity shall include, but shall not be limited to:
(1)
Expansion of such use to any structure or land area other than that occupied by such nonconforming use on the effective date of this chapter, or any amendment hereto, which causes such use to become nonconforming; except, however, a single-family dwelling located in a High Tech District, which may constitute a nonconforming use because it is located in such district wherein residential use is no longer permitted, may be expanded upon the issuance of a specific permit by the Zoning Board of Appeals as provided in § 192-123 of this chapter. In order to apply for a specific permit under this section, the owner of the lot upon which the single-family dwelling is situate must have been the owner of the said lot at the time of the enactment of this legislation and must, at the time of the application for the specific permit, continue to be the owner of the lot as well as the occupant of the single-family dwelling thereon.
[Amended 8-10-2009 by L.L. No. 4-2009]
(2)
Expansion of such use within a building or other structure to any portion of the floor area that was not occupied by such nonconforming use on the effective date of this chapter, or any amendment to this chapter, which causes such use to become nonconforming.
(3)
An extension of the hours of operation of such use beyond the existing hours of operation at the adoption of this chapter shall not be allowed.
F.
Change in use.
(1)
A nonconforming use in a structure designed for a use permitted in the district in which it is located shall not be changed to any use other than a use permitted in the zoning district in which the property is located.
(2)
Once changed to a permitted use or to a more restrictive use in accordance with Subsection F(1), above, the use shall not be changed back to the prior nonconforming use. The use is changed when an existing nonconforming use is terminated and a new use commences and continues for a period of seven consecutive days, including any change of use in violation of this subsection.
G.
Abandonment or discontinuance.
(1)
When the active operation of a nonconforming use is discontinued or abandoned for a period of six consecutive months or for 540 days during any three-year period, regardless of any intent to resume or not to abandon the use, the use shall not be reestablished or resumed. The active operation of a use shall be the typical or normal activities associated with the use. Any subsequent use or occupancy of such land or structure shall comply with the use regulations of the zoning district in which such structure is located.
(2)
For the purpose of this section, the following circumstances, which shall not be exclusive, shall contribute towards evidence of discontinuance or abandonment of a use:
(a)
Failure to maintain regular business hours, typical or normal for the use (past operations of the use and/or industry standards may be used to determine typical or normal hours); or
(b)
Failure to maintain equipment, supplies or stock-in-trade which would be used for the active operation of the use; or
(c)
Failure to maintain utilities which would be used for the active operation of the use; or
(d)
Failure to pay taxes, including, but not limited to, sales taxes, workers' compensation taxes, property taxes, corporate taxes, etc., that would be required for the active operation of the use; or
(e)
Failure to maintain required local, state or federal licenses or other approvals that would be required for the active operation of the use.
(3)
The legality of one or more nonconforming uses located within a property shall not affect the determination that another nonconforming use on the same property has been discontinued or abandoned.
(4)
An owner or operator shall have the opportunity to submit any evidence or proof that the property and its use has not been discontinued or abandoned. The Department shall then issue a letter of determination based upon the evidence of any of the above circumstances or other relevant evidence that a nonconformity has continued or been discontinued or abandoned.
H.
Nonconforming accessory uses and structures. No use, structure or sign that is accessory to a principal nonconforming use or structure shall continue after such principal use or structure shall have ceased or terminated.
I.
Exception for vehicle service (gas) station with retail structure.
[Added 6-12-2017 by L.L. No. 1-2017]
(1)
Notwithstanding anything to the contrary in this § 192-112, on a site which is utilized as a vehicle service (gas) station as defined in § 192-14 of this chapter, the structure which houses the retail use associated with the vehicle service (gas) station may be expanded, enlarged or rebuilt in its entirety with the following conditions:
(a)
The retail use so expanded, enlarged or rebuilt shall be one structure only.
(b)
Any gas pumps currently located on the site shall never increase in number.
[1]
If site plan approval is obtained which reduces the number of gas pumps on the site, the reduced number of pumps shall be the number of nonconforming pumps which shall not be increased.
[2]
Gas pumps and associated equipment, including a canopy, may be relocated and/or rebuilt so long as the number of pumps does not increase.
(2)
The primary use of the site shall continue to be identified as vehicle service (gas) station until such time as all gas pumps and their associated structures and uses, excluding the retail structure, are removed from the site. Until such removal, the use of the site will continue to be a nonconforming use and subject to all regulation and requirements of § 192-112 of this chapter.
§ 192-113 Nonconforming structures.
A.
Continuance. Any nonconforming structure which is devoted to a use which is permitted in the zoning district in which it is located may be continued so long as it remains otherwise lawful, subject to the restrictions in this section.
B.
Enlargement, repair or alterations. Any nonconforming structure may be enlarged, maintained, repaired or altered, provided no additional nonconformity is created or the degree of the existing nonconformity is not increased.
C.
Damage or destruction.
(1)
In the event that any part of a nonconforming structure which contributed to its nonconformity is damaged or destroyed, by any means, to the extent of more than 50% of the cost of replacement of said part new, such part shall not be restored unless it shall thereafter conform to the regulations of the zoning district in which it is located.
(2)
When such a part of a nonconforming structure is damaged or destroyed, by any means, to the extent of 50% or less of the cost of replacement of such part new, no repairs or restoration except in conformity with the applicable zoning district regulations shall be made unless a zoning certificate is obtained and restoration is actually begun within six months after the date of such partial destruction and completed within one year.
(3)
An existing single-family dwelling which may be a nonconforming structure because it is devoted to a use that is not permitted in the zoning district to which it is located may be rebuilt, repaired, replaced or restored in whole or part without regard to Subsection C(1) and (2) above, in the event the structure is damaged or destroyed by any means. Said rebuilding, repair, replacement or restoration must begin within six months after the date of said destruction and completed within one year.
[Added 6-9-2008 by L.L. No. 4-2008]
D.
Moving. No nonconforming structure shall be moved in whole or in part, for any distance whatsoever, to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved.
§ 192-114 Nonconforming signs.
A.
Discontinuance.
(1)
All signs that do not conform to the regulations of this chapter shall be brought into conformity or removed by January 1, 2012, except for window signs, which shall be brought into conformity by January 1, 2010. No element of a nonconforming sign may be changed unless the resulting sign complies with the current regulations of this chapter.
(2)
Exceptions. Notwithstanding the requirements of Subsection A(1) above, the following signs may remain on a lot notwithstanding that the signs do not conform with the regulations of this chapter:
[Amended 12-12-2011 by L.L. No. 8-2011; 12-9-2013 by L.L. No. 7-2013]]
(a)
Detached signs: signs for which, during the time frame from January 1, 2008, but prior to January 1, 2014, the Town of DeWitt Zoning Board of appeals has issued a variance, the Planning Board has issued site plan approval and a permit has been issued, provided the signs remain in conformance with the variance, site plan approval and permit. Signs for which, prior to January 1, 2008, the Town of DeWitt Zoning Board of Appeals has issued a variance, the Planning Board has issued site plan approval and a permit has been issued, if said variance, approval and/or permit are required by the Code, may remain on a lot as nonconforming signs.
(b)
Attached signs, except painted signs.
(c)
Detached signs with changeable copy pursuant to § 192-106D(2).
B.
Alteration; expansion; moving. No nonconforming sign shall be:
C.
Termination of nonconforming signs.
(1)
Termination by abandonment. Any nonconforming sign, the use of which is discontinued for a period of 45 days, regardless of any intent to resume or not to abandon such use, shall be deemed to be abandoned and shall not thereafter be reestablished. Any period of such discontinuance caused by government actions shall not be considered in calculating the length of discontinuance for purposes of this subsection.
(2)
Termination by change. Any nonconforming sign shall be terminated and removed upon occurrence of any of the following:
[Amended 12-9-2013 by L.L. No. 7-2013]
(b)
Any change is made in or to the sign which alters its façade, size and/or configuration in any way, including but not limited to alterations of copy, colors, wording and/or shape;
(3)
Termination by damage or destruction. Any nonconforming sign damaged or destroyed, by any means, to the extent of 35% of its replacement cost new shall not be restored but shall be terminated.
D.
Amortization of off-site signs and/or billboards. With the exception of off-site signs or billboards a) legally erected, improved, enlarged or maintained located in the Industrial Districts of the Town and/or b) legally erected, improved, enlarged or maintained pursuant to New York Highway Law § 88 and for which a New York State outdoor advertising permit has been legally issued, any off-site signs and/or billboards which are, as of the date of the enactment of this Code amendment, legally erected, improved, enlarged or maintained by the Town shall be removed as set forth in the New York General Municipal Law § 74-c, including the amortization schedule and notice provisions set forth therein. In the event any such legally erected off-site sign or billboard becomes damaged or partly or wholly destroyed, it may be repaired and/or restored to the same or similar condition it was at the time of the enactment of this legislation, but in no event may it be enlarged or modified. In no event will any such repair or restoration be construed to extend the time within which the sign must be removed. Legal off-site signs or billboards located in Industrial Districts of the Town or legal off-site signs or billboards pursuant to New York Highway Law § 88 and for which a New York outdoor advertising permit has been legally issued shall not be subject to amortization as provided herein shall not be required to be removed unless notice is given by the Town to the owner of the off-site signs and/or billboards and just compensation is paid therefor.