Tusten Town City Zoning Code
ARTICLE IX
Nonconforming Lots and Uses
§ 300-9.0 Purpose and applicability.
A.
Purpose.
(1)
It is the purpose of this article to recognize that if, prior to the adoption of the original Town of Tusten Zoning Law as amended, reenacted and replaced, property was used for a then lawful purpose or in a then lawful manner which this chapter 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 Town from regulating the change, alteration, reconstruction, reestablishment, extension, destruction and abandonment of nonconforming uses in accord with New York State Town Law and general case law.
(2)
The purpose of this article is 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.
(3)
Another intent of this article to prescribe those standards which are to be applied by the Town in determining the reasonableness of a proposal to change, alter, reconstruct, reestablish, or extend a nonconforming use. The following are regulations which shall apply.
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. Any lot, structure or use created, constructed or established after the effective date of the original Zoning Law, 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.
§ 300-9.1 Definitions.
As used in this article, the following terms shall have the meanings indicated:
NONCONFORMING LOT
Any lot which does not conform to 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 Sullivan County Clerk prior to the effective date of the original Town of Tusten Zoning Law, as amended, reenacted and replaced.
NONCONFORMING STRUCTURE
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 the original Town of Tusten Zoning Law, as amended, reenacted and replaced; and including, but not limited to, nonconforming signs.
NONCONFORMING STRUCTURE ALTERATION
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.
NONCONFORMING STRUCTURE RECONSTRUCTION
The rebuilding of a nonconforming structure damaged or destroyed by casualty to the exact or less nonconforming Town of Tusten Zoning Law condition which existed prior to the casualty.
NONCONFORMING USE
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 the original Town of Tusten Zoning Law, as amended, reenacted and replaced.
NONCONFORMING USE CHANGE
The conversion of a nonconforming use to a different use classification as enumerated on the schedule of district regulations, § 300-4.0 of this chapter.
NONCONFORMING USE EXTENSION
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.
NONCONFORMING USE REESTABLISHMENT
The reopening or reinstitution of a nonconforming use which has been discontinued by the owner of the said use, such reopening affected prior to the abandonment of the nonconforming use as determined under the provisions of this chapter.
§ 300-9.2 Nonconformities under development.
For the purposes of this Article IX, a building, structure or use, planned and substantially under construction in compliance with existing laws 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.
§ 300-9.3 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.
§ 300-9.4 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.
§ 300-9.5 Changes of nonconforming uses.
A.
Special uses. All changes of nonconforming uses shall be considered special uses subject to the specific procedures and review criteria contained in Article VIII of this chapter, including requirements for building permits. 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 Board in accord with classification of the uses in the schedule of district regulations, § 300-4.0 of this chapter. 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 this chapter to eliminate incompatible uses from specific zoning districts. For example, a change from a nonconforming retail store in the R1 District to a bank or professional office may be permitted; however, a change to a manufacturing use would not be permitted.
B.
Conforming changes and conversions. A change in a nonconforming use to a conforming use shall not be considered a special use unless the proposed use is classified as a special use by the schedule of district regulations in Article IV. § 300-4.0 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 be reestablished. The conversion of a nonconforming use to a nonconforming use of like classification shall not be considered a special use. 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.
§ 300-9.6 Extension of nonconforming uses.
A.
Special uses. All extensions of nonconforming uses shall be considered special uses subject to the specific procedures and review criteria contained in Article VIII of this chapter, including requirements for building permits.
B.
(Reserved)
C.
Extension 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, as amended, 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.
D.
Prohibited extensions. Should the use proposed for extension be one which is specifically prohibited as a new use in the Town or is a use judged by the Planning Board 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.
E.
Other standards. All changes to nonconforming uses shall also be subject to all other applicable standards in this chapter.
§ 300-9.7 Reconstruction.
A.
Time limit. If any nonconforming structure or use is damaged or destroyed as a result of a casualty, it may be restored or reconstructed to its preexisting condition of nonconformity within 18 months of the date of the casualty. The Code Enforcement Officer (CEO) may, upon written application by the owner of the structure, grant a one year extension for just cause demonstrated by the owner.
B.
Procedure; permits. All applicable permits for the reconstruction of a nonconforming use shall be required. Such reconstruction shall not be considered a special use unless the reconstruction involves a change or extension of use as regulated by §§ 300-9.5 and 300-9.6 of this chapter, respectively.
§ 300-9.8 Abandonment of nonconforming uses.
A.
Use abandoned. Unless extended in accord with this article, if a nonconforming use of land or structure ceases operation, is discontinued or is vacated for a period of 12 months or more, then this shall constitute an abandonment of 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.
B.
Abandonment.
(1)
A nonconforming use shall be considered abandoned when, among other circumstances:
(a)
Intent of the owner. The intent of the owner to discontinue the use is apparent by the posting of signs, boarding of windows, or failure to pay taxes or assessments due or similar actions or lack thereof; or
(b)
Equipment and furnishings. The equipment and furnishings used in furtherance of the nonconforming use have been removed from the premises; or
(c)
Use replaced. The nonconforming use has been replaced by a conforming use or changed to another use under permit by the Town; or
(d)
Maintenance. The structure and/or premises is not maintained in a manner with consistent with applicable local and state building and property maintenance codes; or
(e)
Occupancy. The building is not occupied for a period of one year.
(2)
The Code Enforcement Officer (CEO) may, upon review and recommendation by the Planning Board and for good cause shown by the applicant, grant an extension of not more than one year for the continuation of the nonconforming use.
§ 300-9.9 Alterations of nonconforming structures.
A.
Alterations. The alteration of nonconforming structures shall be permitted in accordance with this article.
B.
Procedure; permits. All applicable permits for the alteration of a nonconforming structure shall be required. Such alteration shall not be considered a special use unless the alteration involves a change or extension of use as regulated by §§ 300-9.5 and 300-9.6 of this chapter, respectively.
C.
Increase in area or bulk nonconformity. In the case where a proposed alteration of a nonconforming structure will result in an increased nonconformity of setback, height, lot coverage or other area or bulk standard, an area variance shall be required from the Zoning Board of Appeals.
D.
Other standards. All changes to nonconforming uses shall also be subject to all other applicable standards in this chapter.
§ 300-9.10 Use of noncomforming lots of record.
A.
Single-family dwelling.
(1)
Vacant substandard lots may be used for a single-family dwelling, and a building permit issued by the Code Enforcement Officer (CEO), provided that:
(a)
The use is allowed in the district.
(b)
The lot is of record in the Sullivan County Clerk's office.
(c)
The lot is in separate ownership from abutting parcels. If two or more vacant substandard lots have the same ownership, the lots shall be merged.
(d)
The lot meets the setbacks and other yard requirements in accordance with the schedule of district regulations stipulated in Article IV of this chapter.
(e)
A sewage disposal system is provided in accordance with applicable Town and New York State requirements.
(2)
Single-family dwelling; protocol and requirements for lots with lesser dimensions. A building permit for the improvement of a lot with lesser dimensions and requisites than those criteria stated in § 300-9.10A shall only be issued if an area variance is granted by the ZBA.
B.
Commercial uses.
(1)
Vacant substandard lots may be considered for a commercial use subject to site plan review provided that:
(a)
Such use is allowed in the district.
(b)
The lot is of record in the Sullivan County Clerk's office.
(c)
The lot is in separate ownership from abutting parcels. If two or more vacant substandard lots have the same ownership, the lots shall be merged.
(d)
The lot meets the setbacks and other yard requirements in accordance with the schedule of district regulations stipulated in Article IV of this chapter.
(2)
Commercial use; protocol and requirements for lots with lesser dimensions. Site plan review for the improvement of a lot with lesser dimensions and requisites than those criteria stated in § 300-9.10B shall only be allowed if an area variance is granted by the ZBA.
§ 300-9.11 Certificate of nonconformance.
The Code Enforcement Officer (CEO) shall, for purposes of establishing the legality of an existing nonconforming use, issue a certificate of nonconformance to any owner of a nonconforming structure or use who so requests, provided there is sufficient evidence of the use's legal existence prior to the effective date of those regulations to which it is nonconforming. The Code Enforcement Officer (CEO) may submit any application for a certificate of nonconformance to the Planning Board for the Board's review and recommendation with regard to the evidence of nonconformity.