Town of Eden, NY Article VII Nonconforming Uses, Buildings and Lots

§ 225-36 Nonconforming uses.

A. A nonconforming use is any use, whether a building or tract of land or both, existing on the effective date of this chapter which does not conform to the use regulations of the district in which it is located.

B. The following provisions shall apply to all nonconforming uses existing on the effective date of this chapter which do not conform to the requirements set forth in this chapter and to uses that become nonconforming by reason of any subsequent amendment to this chapter:

[Amended 11-14-2001 by L.L. No. 8-2001]

(1) Nonconforming uses. Any nonconforming use of buildings or open land, except as specified herein, may be continued indefinitely but shall not be:

(a) Changed to another nonconforming use without special permission from the Board of Appeals, and then only to a use which, in the opinion of said Board, is of the same or a more restricted nature.

(b) Reestablished if such use has been discontinued for any reason for a period of one year or more or has been changed to, or replaced by, a conforming use. Intent to resume a nonconforming use shall not confer the right to do so.

(2) Except as provided in Subsection B(3) below, no building which houses a nonconforming use shall be:

(a) Moved to another location where such use would be nonconforming; or

(b) Restored for other than a conforming use after damage from any cause of 75% of the replacement cost of such building, exclusive of foundations. Any such damaged building may be restored but not enlarged if application for a building permit is made within six months and the nonconforming use is reinstated within one year of such damage. If the restoration of such building is not completed within the provisions of § 225-39H, the nonconforming use of such building shall be deemed to have been discontinued, unless such nonconforming use is carried on without interruption in the undamaged portion of such building.

(3) A nonconforming use of buildings or land in a district may be enlarged, extended, intensified or remodeled upon obtaining a permit from the Board of Appeals specifying the conditions of such enlargement. No permit shall be issued unless the Board of Appeals shall find that:

(a) Practical difficulties prevail in operating the premises or structures in the presently existing nonconforming manner such that the proposed extension or remodeling would constitute reasonable adjustment of the existing nonconforming use or remodeling will reduce the nonconforming use.

(b) The proposed extension will not have a deleterious effect on the neighborhood of the existing nonconforming use. In determining deleterious effect, the Board of Appeals shall take into consideration, among other things, traffic safety, nuisance characteristics, manner of operation, total ground area covered by structure and appearance and condition of premises.

(c) The proposed extension or remodeling will not be more incompatible with or adversely alter the model and character of the neighborhood and neighborhood structures or prejudice value of adjoining properties.

(d) Adequate or on-site parking and loading space will be provided all potential users.

(e) The proposed extension or remodeling will not unduly restrict fire and police protection of the premises and of surrounding properties.

(f) Such enlargements shall not extend beyond the boundaries of the lot occupied by such nonconforming use at the time such use became nonconforming, nor shall such enlargement violate any height, yard, parking area or other open space requirement of this chapter.

(4) Nothing in this section shall be deemed to prevent normal maintenance and repair of any building or the carrying out, upon the issuance of a building permit, of major structural alterations or demolitions necessary in the interest of public safety. In granting such a permit, the Building and Zoning Inspector shall state the precise reason why such alterations were deemed necessary.

§ 225-37 Nonconforming buildings.

A. A nonconforming building is any building which contains a use permitted in the district in which it is located but does not conform to the district regulations for lot area, width or depth; front, side or rear yards; maximum height; lot coverage; or minimum livable floor area per dwelling unit.

B. Normal maintenance and repair, structural alteration, moving, reconstruction or enlargement of a nonconforming building is permitted, provided that such action does not increase the degree of or create any new nonconformity with regard to the regulations pertaining to such building.

§ 225-38 Nonconforming lots of record.

A. A residential plot separated by other land not in the same ownership and nonconforming as to bulk on the date of enactment of this chapter or the effective date of subsequent amendments, whether or not located in and part of a subdivision and approved by the Planning Board of the Town of Eden and filed in the office of the Erie County Clerk may be used for any use permitted by right in the zoning district in which the plot is located, provided that such uses comply with the bulk and area and yard regulations as specified in the highest residential district having the same or less plot width. Where such residential district requires certain utilities or transfer of development rights, the provision of such shall be prerequisite to its residential use.

[Amended 11-14-2001 by L.L. No. 8-2001]

B. Two or more nonconforming subdivision lots, not in separate ownership, in a subdivision approved by the Planning Board prior to the effective date of this chapter shall have three years from the date of final approval by the Planning Board to obtain a building permit under the provisions of Subsection A. Any nonconforming plot in a subdivision finally approved by the Planning Board more than three years prior to the effective date of this chapter shall not be eligible to receive a building permit, and said subdivision, part or plot thereof shall be resubmitted to the Planning Board in accordance with the applicable provisions of this chapter.

C. Any plot in a subdivision approved by the Planning Board after the effective date of this chapter which conforms to the bulk, width and depth requirements of this chapter but which is made nonconforming as to bulk, width or depth by any future amendment of this chapter shall have three years from the effective date of the future amendment or three years from the date of final approval, whichever is sooner, to obtain a building permit under Subsection A. Any subdivision plot for which a permit is applied for after the time periods specified herein shall conform to all the bulk regulations of this chapter, and Subsection A shall be inapplicable to such a plot.

D. Any separate plot, nonconforming as to bulk, which becomes subsequently attached to other adjoining land in the same ownership shall be entitled to the benefit of the provisions of Subsection A only if the total contiguous plot remains nonconforming as to bulk after the plots become attached.