[Amended 4-15-1999 by L.L. No. 15-1999]
Except as provided hereafter in § 170-101, any building, structure or actual bona fide use, involving a substantial monetary investment, in buildings or other structures affixed to and made part of the real estate, which shall have existed as of July 16, 1945, and since said date shall not have been abandoned, may be continued, even though such building, structure or use shall not conform with the provisions of this chapter for the district in which it is located, provided that such existing building, structure or use shall have been constructed, altered or used in conformity with law and shall be in conformity with other existing law. No change, extension or enlargement of said use, however, shall be made in any building, land or premises or part thereof unless such change in use shall be in conformity with the provisions of this chapter and any other applicable ordinance or laws, whichever shall be the more restrictive. Similarly, whenever a district shall be changed hereafter, the provisions of this chapter with regard to any building or uses lawfully existing at the time of the passage of this chapter shall apply, subject to the conditions set forth in this section, to any building or use lawfully existing in such changed district at the time of the passage of such amendment. A beach or parking lot owned and operated by a duly incorporated community association as of the effective date of this chapter shall be deemed a nonconforming use. Notwithstanding any other provision of this chapter to the contrary, any legally established residential lot which is made nonconforming with respect to lot area or lot dimensions as a result of a change in residential district classification adopted after September 1, 1998, shall continue to be governed by the dimensional standards of the residential zoning district in which it was located prior to the change in classification and shall continue to be considered a legally conforming lot for all zoning purposes. This provision shall be deemed to supersede the uniformity requirement of Town Law § 262 in its application to the Town of Somers, pursuant to Municipal Home Rule Law § 10(1)(ii)(d)(3), to the extent necessary to grant this provision its full meaning in accordance with its intent.
No building which is nonconforming with respect
to height, percentage of area of lot occupied, minimum yard sizes
or minimum area per family shall be enlarged or altered in such manner
as to increase any such nonconformity. No nonconforming use of land
shall be enlarged or extended to additional land. No building which
is nonconforming with respect to use shall be enlarged, nor shall
any such building be altered structurally except as may be required
by order of the Building Inspector to strengthen or restore such building
or any part thereof to a safe condition.
No such nonconforming building or use, if changed
to a building or use which conforms to the provisions of this chapter,
shall be changed back to a nonconforming building or use.
Any such nonconforming use, the physical operation
or use of which has ceased for 12 months or longer, shall be deemed
to be abandoned, and such nonconforming use shall not be resumed.
A.
Subject to the approval of the Board of Appeals, an
existing nonconforming use may be changed to another nonconforming
use, provided that the Board shall find that:
(1)
The proposed new use is substantially more in conformity
with the uses permitted in the district in which such building or
land is situated.
(2)
It will generate no more traffic than the preceding
nonconforming use.
(3)
It will tend to facilitate subsequent transition to
conformity.
(4)
The density of occupancy will be no more than that
of the former nonconforming use.
(5)
The proposed use will not cover more land than the
former use.
B.
In issuing any permit for such change to a new nonconforming
use, the Board of Appeals shall impose such conditions as it may deem
necessary in the public interest, but no such permit shall be granted
for a period of more than five years, with the proviso that upon application
and public hearing at the end of such period, a single extension of
not more than five years may then be granted subject to such further
conditions as the Board of Appeals may then deem necessary.
[Amended 11-10-1959; 6-10-1999 by L.L. No. 29-1999]
No nonconforming building used for a principal nonresidential purpose that is destroyed or damaged from any cause to the extent, as determined by the Building Inspector, of over 50% of the volume of its structure above the foundation shall be restored in nonconforming form or location on the lot or used for the continuance of a nonconforming use therein; provided, however, that such building may be restored and any nonconforming use continued to an extent and in such manner as may be permitted by the Board of Appeals, after application and public hearing as provided in Article XIX of this chapter. The Board of Appeals, upon entertaining such application, shall consider the practical difficulties or unnecessary hardship involved or, in the alternative, the standards and guides specified in § 170-106 of this chapter, even though the application is made pursuant to said Article XIX. Any nonconforming building destroyed by fire, explosion or other cause, other than by willful act of the owner, to the extent of not more than 50% of the volume of its structure above the foundation and any nonconforming building used principally for residential purposes regardless of the degree of damage, may be restored in substantially the same location, provided that said structure is not enlarged beyond the size of said structure immediately prior to such damage.
Application for permit to rebuild or restore the damaged portion of any building damaged or destroyed as set forth in § 170-98 above shall be filed within six months of the day of such damage and shall be accompanied by plans for reconstruction which, as to such portion, shall comply with the provisions of this chapter in all respects save as to the use of the building or structure.
If a permit for such rebuilding or restoration
is granted, it shall lapse 12 months thereafter unless the permitted
construction is completed within such period, except that the Building
Inspector, in his discretion, may grant a six months' extension thereof
if construction has been delayed by circumstances beyond the control
of the permit holder.
A nonconforming use, as hereinabove defined,
consisting of the excavation of sand, gravel, shale, top- or common
soil or natural mineral deposit or the quarrying of any kind of rock
formation may be continued, as aforesaid, provided that a permit therefor
is issued and such use is conducted and maintained as follows:
A.
Within 30 days after the effective date of this chapter,
the owner or lessee of the whole or any part of any premises, subject
to the provisions of this subsection, shall file with the Town Clerk
a written application for a permit to excavate sand, gravel, shale,
top- or common soil or natural mineral deposit or to quarry any kind
of rock formation. The application shall be accompanied by a map or
diagram showing the dimensions and boundaries of the property or tract
or so much thereof as is claimed to be the subject of the nonconforming
use; the area or areas where the excavation or quarrying upon said
property or tract has been terminated; the area or areas then under
excavation or being quarried; the area or areas to be excavated or
quarried; and the prospective depth of the excavation or quarrying
under the permit applied for. Said application shall also be accompanied
by proof that there are no arrears in real estate taxes or assessments
affecting the premises referred to in said application or any part
thereof and the written and acknowledged consent of the holder of
any mortgage, constituting a lien on said premises, to the issuance
of the permit. The application shall also set forth the full name
and address of the applicant and the nature of his interest in the
subject premises and the operation.
B.
Thereupon, the Town Clerk shall file with the Board of Appeals the aforementioned map or diagram, mortgagee's consent and proof of payment of taxes and assessments; and the Board of Appeals shall fix the amount of the bond for the faithful performance by the applicant of the provisions of this section, after public hearing upon notice as provided in § 267, Subdivision 5, of the Town Law. The Board of Appeals shall forthwith notify the applicant of the amount of the bond; and, within 10 days thereafter, the applicant shall file said bond with the Town Board. The bond so filed, if found to be acceptable as to form and sufficiency by the Town Board, shall thereupon be approved by such Board, whereupon a permit shall be issued by the Town Clerk for the continuance of the nonconforming use therein specified. At any time thereafter, upon public hearing and the notice provided for in the aforesaid section of the Town Law, the Board of Appeals may increase, reduce or continue the amount of the bond; and such bond, as increased, reduced or continued, shall thereupon be approved as to form and sufficiency by the Town Board. In fixing, reducing, increasing or continuing the amount of the bond, as aforesaid, the Board of Appeals shall give due consideration, among other things, to the size and extent of the proposed excavation, the probable cost of rehabilitating the excavated areas and the standards more particularly enumerated in Subsection C below.
C.
It is the purpose and intent of this chapter that:
(1)
The premises which are the subject of the permit
shall not be left with holes, depressions or gullies.
(2)
The natural watershed and watercourses shall
be undisturbed.
(3)
The property shall be available within a reasonable
time after issuance of the permit for such residential or other use
as may be permitted by this chapter.
(4)
The property shall not be left or abandoned,
as barren or waste land unavailable for any lawful use.
(5)
Conditions shall not prevail which may tend,
unreasonably and adversely, to affect the health, safety and general
welfare of the community.
D.
All taxes and assessments, affecting the whole or
part of the premises referred to in the aforesaid permit, shall be
paid as they become due and payable.
E.
Said excavations or quarrying shall not be permitted
within 100 feet of any street line.
F.
Adequate provision shall be made for the prevention
of flying dust and rock.
G.
Any excavation or quarrying shall be so conducted
that neither the excavation nor quarrying nor any deposit, topsoil,
earth, stone, gravel, rock or other natural mineral deposit shall
interfere with any natural watercourse or the natural drainage of
the property.
H.
Upon the termination of such excavation or quarrying
or when no longer required in furtherance of the nonconforming use,
any structure, improvement, equipment or machinery theretofore erected,
placed or maintained upon such premises, except as may otherwise be
permitted under this chapter, shall be removed, and the premises restored
to their original condition or as nearly so as may be practicably
possible.
I.
No operation referred to in this chapter shall be
conducted after 7:00 p.m. or before 8:00 a.m. nor at any time on Sunday;
and during the hours of operation such operation shall be conducted
without unnecessary noise.
J.
In order that the premises described in the permit shall not be left or abandoned as barren or waste land unavailable for some lawful use permitted by this chapter, it shall be the responsibility of the owner of the premises and the permittee and they are hereby required to rehabilitate and restore the premises in the manner herein prescribed. Such rehabilitation and restoration shall be progressed as expeditiously as possible and in such manner and sequence that the premises shall be available for such lawful use as rapidly as possible. As the excavation or quarrying is so progressed, that portion of the premises where excavation or quarrying has been completed, to the depth specified in the permit, shall be rough-graded in such manner that the natural drainage and natural slope or repose of the soil, sand or gravel shall be fully restored; and where the depth of the excavation is so extensive as to require fill before the premises may be available for a lawful use, such portion of the premises shall be filled with clean, unburnable fill, containing no garbage, refuse or other deleterious matter, to such grade as may be reasonable, in order that the purpose and intent of this chapter as expressed in Subsection C hereof may be duly effected.
K.
The nonconforming use shall be terminated and considered
fully amortized five years from the date of the permit, which shall
expire simultaneously therewith, unless said use shall have been abandoned
prior to that date, in which event, the permit shall expire simultaneously
therewith and shall not thereafter be subject to renewal, reinstatement
or extension; or within 90 days and not less than 30 days immediately
preceding the expiration of the then current permit, the owner or
lessee of the property covered by the permit applies to the Town Clerk
for a renewal thereof for a period of five years, in which event,
the provisions of this section shall apply to such renewal and any
subsequent renewal or renewals.
[Amended 8-9-1960]
L.
Upon the abandonment or termination of the nonconforming
use and the restoration and rehabilitation of the premises, in the
manner herein provided, the Board of Appeals, after public hearing
upon due notice, may recommend to the Town Board that the aforesaid
bond be canceled, and, thereupon, the Town Board shall order the same
canceled as of record, unless there is some good or valid objection
to such cancellation.
M.
In the event of failure or refusal to comply with
any of the applicable provisions of this section, the Board of Appeals,
after public hearing upon such notice as is prescribed by law, may
suspend or revoke any permit theretofore issued. In the case of a
revocation, the Town Board may restore and rehabilitate the premises
in the manner prescribed in this section and defray the cost thereof
from the proceeds of the aforesaid bond.
N.
In addition to the foregoing, such violation shall be punishable and the provisions of this section shall be enforceable as provided in § 170-122 of this chapter and § 268 of the Town Law.
O.
The provisions of Subsections A to N, inclusive, of this section shall not apply to excavations in connection with the construction of a wall, building or part thereof or customary appurtenances to a farm or dwelling, including a cellar, well, pond, pool or similar improvements, or to farming or any public use or to the removal of topsoil to be used within the limits of the Town of Somers for the improvement of residential property therein situated.
