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(A)
Non-conforming situations that were otherwise lawful on the effective date of this chapter may be continued, subject to the restrictions and qualifications set forth in the sections below.
(B) Non-conforming projects may be completed only in accordance with the provisions of § 153.037.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A) When a non-conforming lot, existing prior to the adoption of this chapter, can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in § 153.135, the lot may be used as proposed just as if it were conforming. However, no use (e.g., a duplex) that requires a greater lot size for a particular zone is permissible on a non-conforming lot.
(B) When the use proposed for a non-conforming lot is one that is conforming in all other respects but the applicable setback requirements (see § 153.142) cannot reasonably be complied with, the Zoning Administrator shall be authorized to reduce the yard requirements for such lot by not more than 20%.
(C) For purposes of division (B) above, compliance with applicable building setback requirements is not reasonably possible if a building that serves the minimal needs of the use proposed for the non- conforming lot cannot practicably be constructed and located on the lot in conformity with such setback requirements. However, mere financial hardship does not constitute grounds for finding that compliance is not reasonably possible.
(D) This section applies only to undeveloped non-conforming lots. A lot is undeveloped if it has no substantial structures upon it. A change in use of a developed non-conforming lot may be accomplished in accordance with § 153.035.
(E) Subject to the following sentence, if, on the date this section becomes effective, an undeveloped non-conforming lot adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, then neither the owner of the non-conforming lot, nor his or her successors in interest, may take advantage of the provisions of this section. This division (E) shall not apply to a non-conforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 500 feet of such lot are also non-conforming. The intent of this division (E) is to require non-conforming lots to be combined with other undeveloped lots to create conforming lots under the circumstances specified herein, but not to require such combination when that would be out of character with the way the neighborhood has previously been developed.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A)
Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of non-conformity of a non-conforming situation. In particular, physical alteration of structures or the placement of new structures on open land is unlawful if such activity results in:
(1) An increase in the total amount of space devoted to a non-conforming use; or
(2) Greater non-conformity with respect to dimensional restrictions such as setback requirements, height limitations or density requirements or other requirements such as parking requirements.
(B) Subject to division (D) below, a non-conforming use may be extended throughout any portion of a completed building that, when the use was made non-conforming by this chapter, was manifestly designed or arranged to accommodate such use. In addition, a non-conforming use may be extended to additional buildings located on the premises or to unimproved land outside the original building or the additional buildings upon the issuance of a special use permit by the Board of Adjustment which authorizes such additional non-conforming use. Review and action on said special use permit shall be based on the criteria contained in § 153.347.
(C) Subject to § 153.037, a non-conforming use of open land may not be extended to cover more land than was occupied by that use when it became non-conforming; except that, a use that involves the removal of natural materials from the lot (e.g., a quarry) may be expanded to the boundaries of the lot where the use was established at the time it became non-conforming if 10% or more of the earth products had already been removed at the effective date of this chapter.
(D) The volume, intensity or frequency of use or property where a non-conforming situation exists may be increased, and the equipment or processes used at a location where a non-conforming situation exists may be changed, if these or similar changes amount only to changes in the degree of activity rather than changes in kind, and no violations of other paragraphs of this section occur.
(E) Notwithstanding division (A) above, any stick-built structure used for single-family residential purposes (other than manufactured homes) and maintained as a non-conforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlargement or replacement does not create new non-conformities or increase the extent of existing non-conformities with respect to such matters as setback and parking requirements. With the following exceptions, manufactured homes used for single-family residential purposes may be enlarged or replaced in accordance with this division (E); provided, however, said enlargement or expansion in the case of those manufactured homes that have remained vacant beyond the 180-day discontinuance period shall be prohibited by this chapter. This division (E) is subject to the limitations stated in § 153.036. These exceptions are as follows.
(1) Manufactured homes on individual lots in any commercial, office and institutional district may not be replaced by another manufactured home of any class.
(2) Manufactured homes on individual lots in the R-10 and R-15 Zoning Districts may only be replaced by Class A manufactured homes on permanent foundations with brick or masonry underpinning.
(F) (1) Notwithstanding division (A) above, whenever:
(a) There exists a lot with one or more structures on it;
(b) A change in use that does not involve any enlargement of a structure is proposed for such lot; and
(c) The parking requirements of §§ 153.205 through 153.217 that would be applicable as a result of the proposed change cannot be satisfied on such lot because there is not sufficient area available on the lot that can practicably be used for parking, then the proposed use shall not be regarded as resulting in an impermissible extension or enlargement of a non-conforming situation.
(2) However, the applicant shall be required to comply with all applicable parking and loading requirements that can be satisfied without acquiring additional land, and shall also be required to obtain satellite parking in accordance with § 153.214 if:
(a) Parking requirements cannot be satisfied on the lot with respect to which the permit is required; and
(b) Such satellite parking is reasonably available.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A)
Minor repairs to and routine maintenance of property where non-conforming situations exist are permitted and encouraged. Major renovation (i.e., work estimated to cost more than 75% of the appraised valuation of the structure prior to damage and/or renovation) may be done only in accordance with a zoning permit issued pursuant to this section.
(B) If a structure located on a lot where a non-conforming situation exists is damaged to an extent that the costs of repair or replacement would exceed 75% of the appraised valuation of the damaged structure, then the damaged structure may be repaired or replaced only in accordance with a zoning permit issued pursuant to this section. This division (B) does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to a zoning permit just as they may be enlarged or replaced as provided in § 153.033(E).
(C) (1) For purposes of divisions (A) and (B) above:
(a) The COST of renovation or repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair or replacement;
(b) The COST of renovation or repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of divisions (A) and (B) above by doing such work incrementally; and
(c) The APPRAISED VALUATION shall mean either the appraised valuation for property tax purposes, updated as necessary by the increase in the consumer price index since the date of the last valuation, or the valuation determined by a professionally recognized property appraiser.
(2) It shall be the responsibility of the property owner to supply the town with the appraised valuation of the property. Said valuation shall include the necessary documentation to support the valuation.
(D) (1) The Zoning Administrator shall issue a permit authorized by this section if he or she finds that, in completing the renovation, repair or replacement work:
(a) No violation of § 153.033 will occur; and
(b) The permittee will comply to the extent reasonably possible with all provisions of this chapter applicable to the existing use (except that the permittee shall not lose his or her right to continue a non-conforming use, except for those reasons outlined in § 153.036).
(2) Compliance with a requirement of this subchapter is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A) A change in use of property that is sufficiently substantial to require a new zoning or special use permit in accordance with § 153.340(A) may not be made, except in accordance with divisions (B) through (D) below. However, this requirement shall not apply if only a sign permit is needed.
(B) If the intended change in use is to a principal use that is permissible in the district where the property is located, and all of the other requirements of this chapter applicable to that use can be complied with, permission to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot. Once conformity with this chapter is achieved, the property may not revert to its non-conforming status.
(C) If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this chapter applicable to that use cannot reasonably be complied with, then the change is permissible if the Zoning Administrator issues a permit authorizing the change. This permit may be issued if the Zoning Administrator finds, in addition to any other findings that may be required by this chapter, that:
(1) The intended change will not result in a violation of § 153.033; and
(2) All of the applicable requirements of this chapter that can reasonably be complied with will be complied with. Compliance with a requirement of this chapter is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation. Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible. And in no case may an applicant be given permission pursuant to this division (C)(2) to construct a building or add to an existing building if additional non- conformities would thereby be created.
(D) If the intended change in use is to another principal use that is also non-conforming, then the change is permissible if the Zoning Administrator issues a permit authorizing the change. The Zoning Administrator may issue the permit if it finds, in addition to other findings that may be required by this chapter, that:
(1) The use requested is one that is permissible in some zoning district with either a zoning or special use permit;
(2) All of the conditions applicable to the permit authorized in division (C) above are satisfied; and
(3) The proposed development will have less of an adverse impact on those most affected by it and will be more compatible with the surrounding neighborhood than the use in operation at the time the permit is applied for.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A)
When a non-conforming use is discontinued for a continuous period of 180 days, the property involved may thereafter be used only for conforming purposes, except as detailed in division (F) below.
(B) If the principal activity on property where a non-conforming situation other than a non-conforming use exists is discontinued for a continuous period of 180 days, then that property may thereafter be used only in conformity with all of the regulations applicable to the preexisting use, unless the entity with authority to issue a permit for the intended use (i.e., the Board of Adjustment) issues a permit to allow the property to be used for this purpose without correcting the non-conforming situations. This permit may be issued if the Board of Adjustment finds that eliminating a particular non-conformity is not reasonably possible (i.e., cannot be accomplished without adding additional land to the lot where the non-conforming situation is maintained or moving a substantial structure that is on a permanent foundation). The permit shall specify which non-conformities need not be corrected.
(C) For purposes of determining whether a right to continue a non-conforming situation is lost pursuant to this section, all of the buildings, activities and operations maintained on a lot are generally to be considered as a whole. For example, the failure to rent one apartment in a non-conforming apartment building for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as a whole is continuously maintained. Likewise, if a non- conforming building remains on the market for rent or sale and fails to be rented within a 180-day period, the said non-conforming building shall be allowed to continue as a non-conformity so long as there is evidence of the owner's intention to actively rent or sell the said building.
(D) If a non-conforming use is maintained in conjunction with a conforming use, discontinuance of a non-conforming use for the required period shall terminate the right to maintain it thereafter.
(E) (1) When a structure or operation made non-conforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this section begins to run at the effective date of this chapter.
(2) It shall be the duty of the Zoning Administrator to determine "substantial" compliance with the minimum standards set forth above, along with other applicable standards specified by this chapter. The determination of the Zoning Officer must be set forth in writing and must include an affirmative assertion by him or her that:
(a) The continuance of the non-conforming residential dwelling will contribute to the preservation of the existing housing stock and not result in an increase in any non-conformity;
(b) The continuance of the non-conforming residential dwelling will provide the occupants thereof with decent, safe and sanitary housing; and
(c) The continuance of the non-conforming residential dwelling will be in general conformity with the town's objectives of providing affordable housing opportunities for its citizens and/or encouraging historic preservation.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A)
All non-conforming projects on which construction was begun at least 180 days before the effective date of this chapter as well as all non-conforming projects that are at least 25% completed in terms of the total expected cost of the project on the effective date of this chapter may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this division (A) shall apply only to the particular phase under construction.
(B) Except as provided in division (A) above, all work on any non-conforming project shall cease on the effective date of this chapter, and all permits previously issued for work on non-conforming projects shall be revoked as of that date. Thereafter, work on non-conforming projects may begin or may be continued only pursuant to a zoning, special use, or sign permit issued in accordance with this section by the individual or board authorized by this chapter to issue permits for the type of development proposed. The permit-issuing authority shall issue such a permit if it finds that the applicant has, in good faith, made substantial expenditures or incurred substantial binding obligations or otherwise changed his or her position in some substantial way in reasonable reliance on the land use law as it existed before the effective date of this chapter and thereby would be unreasonably prejudiced if not allowed to complete his or her project as proposed. In considering whether these findings may be made, the permit-issuing authority shall be guided by the following, as well as other relevant considerations.
(1) All expenditures made pursuant to a validly issued and unrevoked building, zoning, sign or special use permit shall be considered as evidence of reasonable reliance on the land use law that existed before this chapter became effective.
(2) Except as provided in division (B)(1) above, no expenditures made more than 180 days before the effective date of this chapter may be considered as evidence of reasonable reliance on the land use law that existed before this chapter became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.
(3) To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.
(4) To the extent that a non-conforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.
(5) An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of:
(a) The total estimated cost of the proposed project; and
(b) The ordinary business practices of the developer.
(6) A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him or her.
(7) Even though a person had actual knowledge of a proposed change in the land use affecting a development site, the permit-issuing authority may still find that he or she acted in good faith if he or she did not proceed with his or her plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The permit-issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that:
(a) At the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development; and
(b) The developer had legitimate business reasons for making expenditures.
(C) The permit-issuing authority shall not consider any application for the permit authorized by division (B) above that is submitted more than 60 days after the effective date of this chapter. The permit-issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.
(D) The permit-issuing authority shall establish expedited procedures for hearing applications for permits under this section, so that construction work is not needlessly interrupted.
(E) When it appears from the developer's plans or otherwise that the non-conforming project was intended to be or reasonably could be completed in stages, segments or other discrete units, the permit-issuing authority shall not allow the non-conforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to ensure reasonable completion of the project.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
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