Except as provided in this chapter, no building, structure or land shall be used except for the purpose permitted in the district as described in this chapter. Any use not listed shall be construed to be prohibited.

(Prior code § 145-42)

Uses permitted by right or by special permit shall be subject, in addition to use regulations, to all other provisions of this chapter.

(Prior code § 145-43)

A.

Nonconformity by Initial Enactment or Amendment. The provisions of this section apply to actions in connection with nonconforming uses, structures and lots as created by the initial enactment of this chapter or by any subsequent amendment. It is the purpose of this chapter to discourage the perpetuity of nonconforming uses whenever possible. The lawful use of any building or land existing at the time of the enactment of this chapter may be continued except as otherwise provided.

B.

Extension and Alteration.

1.

Any nonconforming use, except for agriculture, horticulture or floriculture, of any open space on a lot outside a structure or of a lot not occupied by a structure shall not be extended.

2.

Any nonconforming principal use of a structure shall not be extended.

3.

Any nonconforming accessory use of a portion of a structure or any conforming accessory use of a portion of a nonconforming structure may be extended up to a maximum of twenty-five (25) percent of the floor area of the existing structure.

4.

Any nonconforming structure may be altered and the use extended throughout the altered portion, provided that any resultant alteration shall not cause the structure to violate the dimensional and density regulations of the district in which it is located.

5.

Any nonconforming structure or portion thereof which has come into conformity shall not again become nonconforming.

C.

Reduction or Increase.

1.

Any nonconforming lot or nonconforming open space on a lot, including yards and setbacks, if already smaller than that required, shall not be further reduced so as to be in greater nonconformity.

2.

No building area or floor area, where already nonconforming, shall be increased so as to be in greater nonconformity.

3.

Any off-street parking or loading spaces, if already equal to or less than the number required to serve their intended use, shall not be further reduced in number.

D.

Changes.

1.

Any nonconforming use of a structure may be changed to another nonconforming use by special permit, provided that the changed use is not a substantially different use as determined by the board of appeals.

2.

Any nonconforming use which has once been changed to a permitted use or to another nonconforming use which is not a substantially different use shall not again be changed to another nonconforming use.

3.

Any nonconforming lot which has come into conformity shall not again be changed to a nonconforming lot.

E.

Restoration.

1.

Any nonconforming structure or any structure occupied by a nonconforming use which is damaged by fire or other natural cause may be repaired or rebuilt to the dimensions and floor area limitations of the structure and its legal conforming or legal nonconforming use at the time the structure was damaged.

2.

If restoration under subsection (E)(1) of this section is not started within one year of the cause of the damage, the repaired structure shall not be used except for a conforming use unless the delay is caused by matters over which the owner has no control. For further information on rebuilding, see Section 17.16.020(K) of this title.

F.

Abandonment.

1.

Any nonconforming use of a structure and/or lot which has been abandoned for a continuous period of two years or more shall not be used again except for a conforming use. For agriculture, horticulture or floriculture, the abandonment period shall also be two years.

2.

A nonconforming use shall be considered abandoned when the premises has been devoted to another use or when the characteristic equipment and the furnishings of the nonconforming use have been removed from the premises and have not been replaced by similar equipment within one year unless other facts show intention to resume the nonconforming use.

G.

Moving. Any nonconforming structure shall not be removed to any other location on the lot or any other lot unless every portion of such new structure, the use thereof and the lot shall be conforming.

(Prior code § 145-44)

A.

Registration. The owner of any property located in the RA, RB, RC, BA or CB districts containing more dwelling units than currently permitted by right in the zoning district where the property lies may apply to validate the use in the following manner:

1.

The owner of the property shall apply to the town building inspector for a certificate of occupancy for each dwelling unit in that property.

2.

The building inspector shall, upon receipt of the application, make a full examination of the files and records of the town and make a determination as to whether the property was created in compliance with this chapter and building department regulations.

a.

If the building inspector determines that the dwelling units are in compliance, he or she shall issue a certificate of occupancy in accordance with Section 17.52.060 of this title.

b.

Should the building inspector deny the issuance of a certificate of occupancy for any of the existing units based on his or her determination the unit or units were created in violation of this chapter or if there is no clear evidence that the unit or units were created in compliance with this chapter, he or she shall notify the applicant of his or her decision, in writing, within forty-five (45) days of receipt of the application for the certificate of occupancy.

B.

Special Permit. The owner, upon receipt of the rejection from the building inspector, may then file a written application with the office of the town clerk for a special permit from the special permit granting authority (SPGA) to validate the existing use of the unit or units that were rejected. The application must be filed in accordance with the following terms and conditions:

1.

Any petitions for special permits filed under this section shall follow the procedures set forth in MGL c. 40A, § 9 (as amended to date) and the general requirements for special permits set forth in Section 17.24.010 of this chapter.

2.

The application for a special permit must be received by the town clerk on or before September 1, 1994. No applications will be accepted after that date.

3.

The applications for a special permit shall be made upon a form approved by the special permit granting authority and shall be accompanied with the following:

a.

A certified plot plan showing the location of all structures on the lot and the position of all areas designated for parking.

b.

The appropriate fee for the required special permit. The town may assess a reasonable fee for each special permit application filed in order to defray the cost of administration, legal advertising, compilation of abutter list, certified mailings and the like.

C.

Special Permit Granting Authority (SPGA).

1.

The board of appeals shall serve as the special permit granting authority under this section. All special permits by the board of appeals must be voted on in accordance with the Massachusetts General Laws. Decision shall be by unanimous vote.

2.

If the number of petitions under this section creates an excessive work load for the board of appeals, in its opinion, it shall so inform the town clerk, and any additional petitions under this section shall be acted upon by the Winthrop planning board (WPB), acting as the special permit granting authority. At such time as the board of appeals determines that it is appropriate, it shall inform the town clerk that it is again able to accept applications under this section, and all subsequent applications under this section shall be acted upon by the board of appeals.

3.

All special permits by the planning board must be voted on in accordance with MGL c. 40A, § 9, five out of five members present and voting. Decision shall be by a four-fifths vote.

4.

In order to obtain the approval of a special permit under this chapter, the use being requested must comply with the following regulations:

a.

The use requested must be the same use or one of lesser intensity than the use which has been in existence as of May 1, 1982.

b.

The petitioner must establish the existence of the use conclusively to the special permit granting authority, the burden of proof being upon the petitioner.

c.

The special permit granting authority may consider such evidence as submitted by the petitioner which tends to establish the existence and the duration of the use. Such evidence may consist, in all or in part, of the following:

i.

Town water department records and bills.

ii.

Town board of assessors records and tax bills.

iii.

Various building permits and building department records.

iv.

Purchase and sale agreements.

v.

Notarized letters from previous owners, present and previous tenants and present and previous abutters who have knowledge of the use that existed ten or more years prior to the deadline for acceptance of applications.

vi.

Utility bills and records.

vii.

Any and all other relevant and material evidence or records.

5.

The special permit granting authority shall make the determination as to the accuracy, relevance, materiality and applicability of the evidence and may also consider the physical characteristics of the property when making its decision.

6.

The special permit granting authority may require that adequate parking be made available as a condition of the issuance of a special permit, and it may impose such reasonable conditions and safeguards as it deems appropriate.

7.

The special permit granting authority shall hold a public hearing within sixty-five (65) days of the filing of an application and shall make written findings on all petitions in support of its decision to grant or deny the special permit in accordance with the MGL c. 40A, § 9.

8.

The special permit granting authority may issue a special permit to the petitioner upon finding that the use:

a.

Has been in existence for ten or more years.

b.

Is in harmony with the general purpose and intent of this chapter.

c.

Does not derogate from the integrity or character of the neighborhood or surrounding uses.

d.

Does not create undue traffic congestion or impair pedestrian safety.

e.

Does not pose a hazard to public health and safety.

D.

Certificate of Occupancy (CO).

1.

Upon approval of a special permit by the special permit granting authority, the petitioner must then reapply, upon receipt of approval, for a certificate of occupancy for each dwelling unit that was approved, from the town building department. The certificate(s) shall be issued, provided that the premises comply with the State Building Code, applicable local bylaws and all applicable fire, health and safety codes.

2.

The petitioner will have two years to comply with this subsection and to obtain the appropriate certificate(s) of occupancy; otherwise, the special permit shall be deemed as lapsed. Evidence of such issuance shall be submitted to the special permit granting authority.

3.

In any case where a special permit is denied, the building inspector, pursuant to the building inspector's statutory authority, shall so notify the petitioner that he or she is in violation of this chapter and shall enforce the applicable sections of this chapter with regard to removal or discontinuation of use of the violation.

(Prior code § 145-45)