Westbrook City Zoning Code
ARTICLE III
Nonconformance
§ 335-3.1 Purpose.
The intent of this article is to regulate nonconforming lots, uses and structures. This article intends to be realistic so that nonconforming vacant lots of record can be reasonably developed, nonconforming existing structures can be properly maintained or repaired, and nonconforming uses can continue to be changed to other less nonconforming uses or to conforming uses. When nonconforming uses cease operation, the intent of these regulations is not to allow them to be reestablished after a twelve-month period of dormancy. These regulations are designed for the betterment of the community and for the improvement of property values.
§ 335-3.2 General provisions.
A.
Continuance, enlargement or reconstruction. Any use of land or any structure, or parts thereof, legally existing at the time of the adoption of this chapter, or at any time a zone is changed by amendment hereafter, which does not conform to the requirements of this chapter or its amendments may continue, but may not be extended, reconstructed, enlarged, or structurally altered except as specified by this chapter.
B.
Transfer of ownership. Ownership of lots, structures and uses which remain lawful but become nonconforming by the adoption or amendment of this article may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming structure or lot, subject to the provisions of this article.
C.
In addition to the standards outlined below, nonconforming structures, lots and uses located within the Shoreland Protection Overlay Zone shall conform to the standards outlined in § 335-8.12 of this chapter. Whenever a provision of this article conflicts with or is inconsistent with a provision in § 335-8.12, the provisions of § 335-8.12 shall prevail.
§ 335-3.3 Nonconforming use.
A.
Existing nonconforming use.
(1)
A residential nonconforming use may be extended, altered or expanded without a variance. Any increase in building footprint must conform to the performance standards of the zoning district in which it is located. The expansion or creation of one accessory structure to a nonconforming residential structure shall be permitted.
(2)
Unless otherwise stated in this article, a nonresidential nonconforming use of a building or structure shall not be extended throughout other parts of the building or structure unless those parts of the building or structure were manifestly arranged or designed for such use prior to the adoption of this chapter or of any amendment making such use nonconforming.
B.
Change of a nonconforming use.
(1)
An existing nonconforming use may be changed to another nonconforming use if the Code Enforcement Officer determines that the proposed use is less intrusive than the current use.
(2)
If a nonconforming use is changed to a conforming use by this article, it must remain a conforming use thereafter.
C.
Discontinuance of a nonconforming use. If a nonconforming nonresidential use is discontinued for 12 consecutive months, as determined by the Code Enforcement Officer, it shall thereafter be utilized as a permitted use or conditional use, in accordance with the performance standards in the zoning district in which it is located.
D.
Extractive industry nonconforming use.
(1)
Where the nonconforming use is an extractive industry, it shall be considered a prohibited extension or enlargement of the use to do any of the following:
(a)
Increase the amount of materials lawfully extracted from the site on a monthly basis. This increase shall be determined based upon an average of the amount of materials lawfully extracted on a monthly basis during the operating months of the extractive industry over the immediate prior five years.
(b)
Move lawfully existing processing operations to another location on the property.
(c)
Increase the amount of truck traffic generated on a daily basis. The increase shall be determined based upon an average of the number of truck trips generated on a daily basis during the operating months of the extractive industry over the immediate prior five years.
(d)
Establish any type of extractive industry use on adjacent property that was not part of the parcel on which excavation occurred on the date of the adoption of the ordinance, ordinance amendment or map amendment that made the extractive industry a nonconforming use.
(e)
Relocate to another location on the site extraction activities in lawful existence at the time of the adoption of the ordinance, ordinance amendment or map amendment that made the use nonconforming unless the operator of the extractive industry demonstrates to the Code Enforcement Officer the following:
[1]
The area proposed for extraction activities was clearly intended to be excavated before the adoption of the ordinance, ordinance amendment or map amendment that made the use nonconforming, as measured by objective manifestations and not by subjective intent; and
[2]
The relocated operations will not have a substantially different and adverse impact on the adjacent neighborhood, including but not limited to traffic generation, dust, noise and vibrations.
(2)
For the purposes of this Subsection D, evidence of objective manifestations of intent to excavate an area may include, but is not limited to, Planning Board approval of a plan for an extractive industry for the site, including the area where the relocation is proposed, regardless of whether extraction has commenced in that area before the adoption of the ordinance, ordinance amendment or map amendment that made the extractive industry a nonconforming use.
§ 335-3.4 Nonconforming structure.
A.
Expansions of a nonconforming structure.
(1)
A nonconforming structure may be expanded, provided that the expansion does not increase the nonconformity of the structure, as determined by the Code Enforcement Officer. Expansions of a nonconforming structure that meet the standards of the zone in which it is located are permitted.
(2)
The placing of a foundation below a lawfully existing nonconforming structure shall not constitute the expansion of the structure, provided that the first-floor space of the structure is not increased, and provided that the maximum height limit within the zone is not exceeded.
B.
Restoration or replacement of a nonconforming structure.
(1)
The normal upkeep and maintenance of nonconforming structures, including repairs, renovations and modernizations which do not involve expansion of the nonconforming structure, or any other changes in the structure as required by federal, state or local building and safety codes are permitted.
(2)
Any nonconforming structure which is hereafter damaged or destroyed by fire or any cause other than the willful act of the owner or their agent, as determined by the Code Enforcement Officer, may be restored or reconstructed within one year of the date of said damage or destruction, or two years within the date of fire damage, provided that the restoration or replacement structure does not increase in nonconformity.
§ 335-3.5 Nonconforming lots.
[Amended 9-12-2022 by Ord. No. 2022-105]
A.
Vacant lots. Except in the Shoreland Zone, where a vacant nonconforming lot was part of a subdivision approved in conformance with City and state subdivision regulations and statutes, said lot may be constructed upon in accordance with the zoning requirements in effect at the time the lot was lawfully established, provided the proposed use is a permitted one. This provision shall apply only to a vacant lot that has never been built upon.
B.
A single nonconforming lot which, at the effective date of this chapter, does not meet the minimum lot size or minimum road frontage may be built upon without a variance, provided that such lot is not contiguous with any other lot in the same ownership, and provided further that all other provisions of this chapter are met.
C.
Where a nonconforming lot cannot meet the yard setback requirements of this chapter, the Zoning Board of Appeals may grant a variance in accordance with provisions of Article XV. No variance shall be granted if the lot is by deed connected to an adjacent lot in the same ownership and their combination meets the standards of the Zoning District in which the lots are located.
D.
If two or more contiguous lots or parcels are in single or joint ownership of record and if any of said lots or parcels does not individually meet the dimensional requirements of this chapter or subsequent amendments, and if one or more of the lots are vacant or contain only an accessory structure, the lots or parcels shall be combined to the extent necessary to meet all applicable dimensional standards. This provision does not apply to a nonconforming lot that was part of a subdivision approved in conformance with City and state subdivision regulations and statutes.
§ 335-3.6 Nonconforming lots in the Residential Growth Area 1 or Residential Growth Area 2 districts.
[Amended 9-12-2022 by Ord. No. 2022-105]
The following design standards must be used when new residential construction is proposed for a nonconforming lot located in the Residential Growth Area 1 or Residential Growth Area 2 districts. The purpose of these standards is to ensure that increased density in established neighborhoods makes a positive contribution to the character of the City's urban neighborhoods, while continuing to provide housing for all members of the community. Architectural similarity, not sameness, together with similarity in scale and massing, are the key focus of these standards.
A.
The measurement of the immediate neighborhood is as follows:
(1)
On the same side of the street, by counting six houses to the left and six houses to the right of the proposed building; and
(2)
On the opposite side of the street, by counting the house most directly opposite the proposed building and then counting six houses to the right and six houses to the left.
B.
Building construction material. Buildings must be constructed on a foundation and framed on the site, unless the building meets the state modular home guidelines.
C.
Building design.
(1)
Porches. There must be a porch at all main entrances that face the street or private way. In the case of corner lots, the main entrance that faces the most traveled way shall be used. New homes are required to have a porch if either of the following situations exists: if an existing home on either side of the building lot has a porch or 50% or more of the homes in the immediate neighborhood of the proposed building have porches.
(a)
Single-story buildings. The porch or deck of a single-story building is not required to have a roof but must be at least three feet wide and three feet deep.
(b)
Two- or more story buildings.
[1]
If the porch projects out from the building it must have a roof.
[2]
If the roof of a required porch is developed as a deck or balcony, it may be flat, otherwise the roof must have a similar pitch to the main building.
[3]
If the main entrance is to a single dwelling, the covered area provided by the porch must be designed in a similar style and dimension to an existing porch in the immediate neighborhood. The style chosen shall be approved by the Code Enforcement Officer.
[4]
If the main entrance is to more than one dwelling unit, the covered area provided by the porch(es) must at least cover the main entrances to the building and be designed in a similar style and dimension to an existing porch in the immediate neighborhood. The style chosen shall be approved by the Code Enforcement Officer.
(c)
In all cases, if no applicable porch designs are available in the immediate neighborhood, the Code Enforcement Officer may approve an alternate design that best matches the roof slopes and design of the proposed building.
(2)
Columns. If the front porch at a main entrance provides columns as supports, the columns may not be unadorned four-by-four posts or wrought iron.
(3)
Windows and doors. Street-facing windows must be vertical. Where abutting properties have sash that are divided, then new buildings shall have complementary window designs. Windows in rooms with a finished floor height four feet or more below grade are exempt from this standard.
(4)
Roofs.
(a)
Pitch. Primary structures must have a sloped roof with a pitch that is similar to abutting properties. The use of flat roofs must use the following:
[1]
The cornice meets the following conditions:
[a]
There must be two parts to the cornice. The top part of the cornice must project at least six inches from the face of the building and be at least two inches further from the face of the building than the bottom part of the cornice; and
[b]
The height of the cornice is based on the height of the building as follows: buildings 10 feet tall or less must have a cornice at least six inches high.
(b)
Buildings greater than 10 feet and less than 35 feet in height must have a cornice at least 12 inches high.
(c)
Eaves. Roof eaves must project from the building wall at least 12 inches on all elevations. Buildings that take advantage of the cornice option are exempt from this standard.
(5)
Landscaping. Landscaping must be provided as follows:
(a)
At least one tree, of a two-inch-minimum caliper, must be provided in front of each residential structure. On corner lots, there must be one tree for each 50 feet of frontage on the side street. Such tree(s) shall be guaranteed by the landowner for a minimum of one year.
(b)
Screening shall be provided in the nondriveway side yard in order to provide a buffer to the adjacent lot. The Code Enforcement Officer shall determine that such screening meets the intent of this requirement.
(6)
Vehicle areas.
(a)
Parking areas and driveways must be located to the side of the primary structure's street-facing facade.
(b)
Attached garages must be set back at least four feet further from the property's front lot line than the primary structure's street-facing facade is set back from the property's front lot line.
(7)
Height. Building height shall not exceed the average height of houses in the immediate neighborhood in existence prior to the proposed subdivision or individual home.