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Code Section: 188
Subject: Deck on non-complying structure
Effective Date: 2/08
Interpretation:
Under previous interpretations of Planning Code Section 188, a deck is permitted to be constructed upon the flat roof surface of a non-complying structure provided its open railing is no higher and no more enclosed than required by the Building Code. Previous interpretations of Section 311 exempt the addition of such decks from the notification requirements. Non-complying structures are, by definition, located within portions of lots that would normally not be developable and, decks are generally constructed to provide space for outdoor activities, some of which may have associated impacts, such as noise, on neighboring properties. Therefore, the addition of a deck or its access on any non-complying portion of the roof of a structure requires that a "ten day" letter, similar to that provided for a Block Book Notation, be sent to owners/occupants of all properties which border the subject property, to allow them an opportunity to voice any concerns.
Subject: Variances for Noncomplying Structures
Effective Date: 1/14
Interpretation:
If a project sponsor is seeking to expand or intensify an existing legal noncomplying structure, he or she should only file for a variance from the Planning Code provision under which the proposal is noncomplying. He or she does not need to apply for a variance from Section 188 for the noncomplying structure. For example, if a building extends into a required rear yard and the proposal would expand the structure even further into that yard, the sponsor should apply for a rear yard variance only (for expanding the noncomplying structure within the required rear yard). Alternatively, if a storage structure within the required rear yard is proposed for conversion into a residential use, the sponsor should apply for a rear yard variance only (for intensifying a noncomplying structure within the required rear yard).
This determination is based on the fact that Section 305 only allows variances from the "strict application of quantitative standards" of the Planning Code (excluding those sections specifically listed in Section 305, including height, uses, signs, affordable housing requirements, etc.). In both of the cases outlined above, the rear yard requirement is the underlying "quantitative standard" of the Planning Code that requires a variance under Section 305. Section 188, like other provision of Article 1.7, regulates compliance and generally does not include "quantitative standards" that require a variance under Section 305.
Code Section: 188(a)
Subject: Noncomplying building in rear yard
Effective Date: 3/88
Interpretation:
See Interpretation 172(b)
Code Section: 188(a)
Subject: Intensification of a nonconforming structure
Effective Date: 3/88
Interpretation:
This Section says that noncomplying structures may be enlarged, altered, relocated or intensified provided there is no increase in discrepancy. Therefore, a noncomplying garage in the required rear yard can have stalls added to it provided there is no expansion of the structure and there is no parking beyond the amount that is accessory.
Code Section: 188(a)
Subject: Alteration of noncomplying structure
Effective Date: 3/88
Interpretation:
Previous policy has been to allow the enclosure of the area under an enclosed portion of a building which extends into the rear yard but is supported on columns. This policy does not extend to allowing the enclosure under an open noncomplying deck in the required rear yard.
Code Section: 188(a)
Subject: Conversion of noncomplying structure
Effective Date: 1/89
Interpretation:
This Section states that a noncomplying building may be altered or have a change of use provided that with respect to such structure there is no increase in any discrepancy, or any new discrepancy. One reason for requiring rear yards is to provide an amenity for the residents of a building. Placing residents in a building with a deficient rear yard exacerbates the deficiency with respect to this reason for the rear yard requirement. Therefore, a noncomplying rear yard building could not be converted to residential use without seeking and justifying a variance from the rear yard requirements. However, noncomplying rear yard buildings already having legal residential occupancy, need not seek and justify a rear yard variance to add another dwelling unit provided all. the other Code provisions requisite for a dwelling unit are met.
Code Section: 188(a)
Subject: Noncomplying structure, addition to
Effective Date: 9/91
Interpretation:
This Section states that a noncomplying structure may not be altered or enlarged except in accordance with the current standards. (i.e., The portion of such structure in the buildable area could be expanded while that portion in a required open area could not be expanded.) An exception was made to allow the addition of skylights which would protrude less than one foot above a portion of a roof existing in the required rear yard. It was noted that it is not the intent of the Planning Code to eliminate noncomplying structures or features. They are allowed to remain and retain and enhance their utility within current standards. It was also noted that the "bubble" skylight which minimally protrudes is a common weather tight design. Because of its minimal dimension, such. will be allowed.
Code Section: 188(a)
Subject: Noncomplying buildings for height, expansion
Effective Date: 7/92
Interpretation:
This Section says that noncomplying structures can be expanded or intensified but not if such expansion creates a new discrepancy or exacerbates an existing discrepancy. Expansions of features over the height limit may be allowed on a case-by-case basis if the added floor area is under an existing roof or balcony overhang and backdropped by existing walls of the subject building and if a field trip verifies that the expansion could not add significant shadow to or block views from surrounding properties. This ruling should not be taken to allow expansions into the rear yards or other required open areas. The Board of Appeals has been more liberal in some cases.
Code Section: 189
Subject: Relocation of noncomplying antenna
Effective Date: /96
Interpretation:
This Section states that a noncomplying structure may be relocated provided there is no increase in discrepancy in regard to the standards of the Code. Therefore, a legal antenna that does not comply with the Code, may be moved to another location on the same roof. However, such antenna could not be relocated from a portion of a roof in the buildable area of the lot to a portion of the roof that is in a required open area.
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