See Chapter
423, Subdivision and Land Development.
The following provisions shall apply to nonconformities (see definitions in Article
II).
A. Purposes. These provisions are intended to gradually
encourage greater separation of less compatible uses. As nonconforming
uses may desire to grow significantly in intensity, those uses are
intended to be encouraged to relocate in areas that are more suitable.
Generally, existing nonconformities are intended to be permitted to
be continued and to be resold and modified within certain limits.
B. Registration and continuation of nonconformities.
(1) Evidence of nonconformity; failure to register; statement.
[Amended 7-12-2007 by Ord. No. 12-2007]
(a)
It shall be the responsibility of a party asserting
a nonconformity to provide evidence that the nonconformity was lawfully
created and was and continues to be in compliance with all City laws,
regulations and codes in effect at the time it was created and thereafter.
With respect to nonconforming dwelling units, in addition to the above
requirements, evidence must be provided to show the use is in compliance
with the Rental Registration Ordinance (File of Council No. 88, 2001)
or any successor ordinance and the dwelling units are in compliance
with all building codes.
(b)
Failure to properly register the property in
accordance with the said Rental Registration Ordinance or any successor
ordinance, the failure to maintain said registration, or the failure
to maintain the premises in compliance with all building codes shall
be considered both an intent to abandon the nonconforming use and
an actual abandonment of such nonconforming use and shall make any
subsequent nonconforming use illegal.
(c)
A property owner may request a written statement
of nonconformity from the Zoning Officer after providing sufficient
evidence as stated above. The Zoning Officer may, but is not required
to, prepare a partial or complete list of existing nonconformities.
(2) A lawful nonconforming use, structure or lot as defined
by this chapter may be continued and may be sold and continued by
new owners. Any expansion of, construction upon or change in use of
a nonconformity shall only occur in conformance with this section.
C. Expansion of, construction upon or change in use of
nonconformities.
(1) Nonconforming structure.
(a)
The Zoning Officer shall permit a nonconforming
structure to be reconstructed or expanded provided:
[1]
That such action will not increase the severity
or amount of the nonconformity (such as the area of the building extending
into the required setback) or create any new nonconformity;
[2]
That any expanded area will comply with the
applicable setbacks in that district and other requirements of this
chapter; and
[3]
That if the structure uses an on-lot septic
system, the City sewage enforcement officer determines that such system
is adequate for the proposed use.
(b)
In the case of a nonconforming structure which
is used by a nonconforming use, any expansion shall also meet the
requirements of this section regarding nonconforming uses.
(c)
If a residential building has a lawfully nonconforming
side or rear building setback, additions may occur to increase the
height above such setback or to extend other portions of the building
up to such nonconforming setback line, provided that the structure
is not extended beyond the existing setback line and provided that
no additional nonconformity is created and if all other requirements
of this chapter are met.
(d)
If a nonresidential building has a lawfully
nonconforming side or rear building setback, additions may occur to
increase the height above such setback or to extend other portions
of the building up to such nonconforming setback line, provided that
the structure is not extended beyond the existing setback line and
provided that no additional nonconformity is created and if all other
requirements of this chapter are met. However, such additions shall
not be permitted if the nonresidential building abuts an existing
primarily residential use.
(2) Nonconforming lot.
(a)
New permitted structures for a single permitted
by right principal use and its customary accessory uses may be constructed,
reconstructed or expanded on a nonconforming lot of record as a permitted
by right use if all of the following requirements are met:
[1]
The lot area is at least 40% of the minimum
lot area.
[2]
The lot width is at least 40% of the minimum
lot width.
[3]
The lot is a lot of record that lawfully existed
prior to the adoption of this chapter or an applicable subsequent
amendment.
[4]
Minimum setbacks and other requirements of this
chapter are complied with for any new construction or expanded area.
[5]
If a new principal building will be served by
an on-lot septic system, the lot shall comply with all state septic
regulations and shall provide an approved alternative drainfield location.
[6]
For a dwelling on a nonconforming lot, the front
door shall face a public street, and the dwelling shall have a side
facing onto a public street that has an appearance typical of a front
of a dwelling.
(b)
Setbacks. The Zoning Hearing Board may grant
a special exception to reduce the required setbacks for construction
on a nonconforming lot if the Board determines that such reduction
would result in a building that would be more compatible with neighboring
residences than would be built if the setback requirement was not
reduced.
(c)
Integration. Contiguous nonconforming lots under
common ownership shall be integrated to form lots that would be conforming
or less nonconforming.
(d)
If a proposed development on a nonconforming lot does not meet the requirements of the above §
445-77C(2)(a) and
(b), then development of the lot shall not occur unless a variance is granted by the Zoning Hearing Board. In addition to the standards stated for a variance in the Pennsylvania Municipalities Planning Code, the Zoning Hearing Board shall also review whether any alternative permitted uses could reasonably be made of the property that would less significantly adverse impacts upon the established character of an existing residential neighborhood than the proposed use.
(3) Expansion of a nonconforming nonresidential use. A
nonconforming use or a building used by a nonconforming use shall
not be expanded, except in accordance with the following provisions:
(a)
An expansion of more than 5% in total building floor area shall require special exception approval from the Zoning Hearing Board under §
445-19.
(b)
Such reconstruction or expansion shall be only
upon the same lot that the nonconforming use was located upon at the
time the use became nonconforming.
(c)
The total building floor area used by a nonconforming
use or the total land area used by a nonconforming use, whichever
is more restrictive, shall not be increased by greater than 25% beyond
each such measurement that existed in such use at the time such use
became nonconforming. These maximum increases shall be measured in
aggregate over the entire life of the nonconformity.
(d)
Any expansion of a nonconforming use shall meet
the required setbacks and other requirements of this chapter, unless
the Zoning Hearing Board grants a variance.
(e)
The Zoning Hearing Board may require a nonconforming use that is expanding to provide a buffer yard with a planting screen meeting the requirements of §
445-74 and/or an attractive solid wood fence of six feet minimum height.
(4) Expansion of a nonconforming residential use. An existing
nonconforming residential use may be expanded in floor area as a permitted
by right use, provided that:
(a)
The number of dwelling units or boardinghouse
units or other types of living units is not increased;
(b)
The expansion meets all applicable setbacks;
(c)
No new types of nonconformities are created;
and
(d)
A nonconformity is not made more severe (including
the building area within the required setback area).
D. Damaged or destroyed nonconformities.
(1) Except as provided for in Subsection
D(4) below, a nonconforming structure that has been destroyed or damaged equal up to a maximum of 75% of its appraised fair market value by fire, windstorm, lightning or a similar cause deemed not to be the fault of the owner may be rebuilt in a nonconforming fashion only if:
(a)
The application for a building permit is submitted
within 12 months after the date of damage or destruction;
(b)
Work begins in earnest within six months afterwards;
(c)
A new nonconformity shall not be created or
increased by a reconstruction; and
(d)
The applicant proves to the satisfaction of
the Zoning Officer that the damage or destruction was not greater
than 75% of the appraised fair market value.
(2) A nonconforming structure that has been destroyed or damaged equal by more than 75% of its appraised fair market value by any cause shall not be rebuilt in a nonconforming fashion, except as provided in Subsection
D(5) below.
(3) Rebuilding of a damaged or destroyed nonconformity
shall not begin until plans for rebuilding have been presented and
approved by the Zoning Officer. Any change of one nonconforming use
to another nonconforming use shall comply with the provisions of this
section.
(4) Nonconforming use of open land. All nonconforming
off-premises signs, junkyards, outside storage areas and similar nonconforming
uses of open land, when damaged to an extent of 50% or more of replacement
cost, shall not be continued, repaired or reconstructed. The burden
of proof concerning the extent of the damage shall be upon the applicant.
(5) Dwellings. A destroyed or damaged nonconforming building
including only one or two dwelling units may be reconstructed regardless
of the percentage destruction, provided that:
(a)
No new nonconformity is created or increased
by the reconstruction; and
(b)
That work begins in earnest within 18 months
of the date of damage or destruction unless the Zoning Hearing Board
grants a time extension for good cause.
(6) Fair market value. An applicant shall have the burden
of proof to prove the percent of the fair market value that was damaged
or destroyed. Such proof shall involve an appraisal by a licensed
real estate broker with substantial real estate appraisal experience.
"Fair market value" shall generally be defined as the price a property
would bring under normal conditions on the open market, before and
after the damage. Such value shall assume that the owner is under
no compulsion to sell within a shorter than average time period and
that the property would remain on the market for an average length
of time for such properties.
E. Abandonment of a nonconformity.
(1) Discontinuance of nonconformity; rental residential
properties.
[Amended 7-12-2007 by Ord. No. 92-2007]
(a)
If a nonconforming use of a building or land
is discontinued for a period of six months or more or is discontinued
for a period of 12 or more months in any two-year period, the use
is considered abandoned, except:
[1]
As provided for in the Damaged or destroyed nonconformities section (§
445-77D); or
[2]
If a nonconforming off-premises junkyard, outside
storage area or similar nonconforming use of open land is discontinued
for 30 days or more, the nonconforming use shall not be continued,
repaired or reconstructed.
(b)
Regarding residential properties, failure to
properly register the property in accordance with the Rental Registration
Ordinance (File of Council No. 88, 2001, as amended) or any successor
ordinance, maintain said registration and maintain the premises in
conformance with City building codes shall be considered intent to
abandon the nonconforming use.
(2) The applicant shall be responsible to provide evidence
that the nonconformity was not abandoned.
(3) Any future use of such building or land shall be in
full conformity with the provisions of this chapter.
[Amended 7-12-2007 by Ord. No. 92-2007]
F. Floodplain. See the flood-prone area regulations in §
445-51.
G. Changes from one nonconforming use to another.
(1) Once changed to a conforming use, a structure or land
or portion thereof shall not revert to a nonconforming use.
(2) A nonconforming use may be changed to a different
type of nonconforming use only if permitted as a special exception
by the Zoning Hearing Board. The Board shall determine whether the
applicant has provided sufficient proof to show that the proposed
new use will be equally or less objectionable in external effects
compared to the preexisting nonconforming use. The Board should review
the following types of effects:
(a)
Traffic generation (especially truck traffic).
(b)
Noise, dust, fumes, gases, odor, glare, vibration,
fire and explosive hazards.
(c)
Amount and character of outdoor storage.
(d)
Hours of operation if the use would be close
to dwellings.
(e)
Compatibility with the character of the surrounding
area.
(f)
Potential of the expansion to alleviate existing
congestion and parking shortages by improved site design, addition
of parking and improved loading areas.
(3) Approval of the Zoning Hearing Board shall not be
required for a change from one nonconforming retail sales use to another
nonconforming retail sales use or from one personal service use to
another personal service use, provided that:
(a)
The hours of operation are not increased between
9:00 p.m. to 7:00 a.m.;
(b)
The new use is not a sexually oriented business (see definition in Article
II);
(c)
The new use meets any applicable conditions
placed by the Board on the prior use; and
(d)
The total floor area of the use is not increased
by more than 5%.
H. District changes. Any uses, structures or lots that
become nonconforming because of a zoning district change shall be
regulated under this section on nonconformities.
I. Division of lots with existing buildings. Notwithstanding
limitations imposed by other provisions of this chapter, a lot which
had one or more principal commercial or industrial buildings existing
prior to the adoption of this chapter may be divided after receiving
special exception approval into more than one nonconforming lot, provided
that such division is for purposes of conveyance into separate ownership
and provided that the following conditions are met:
(1) Each lot shall have a guaranteed permanent method
of vehicle access onto a public street, through a permanent legal
access easement or other method approved by the Zoning Hearing Board.
(2) Each lot shall be served by both public water and
public sewage service.
(3) The boundaries of all lots shall be designed in such
a manner to maximize lot area, lot width, lot depth and yard areas
and to result in a functional configuration that minimizes nonconformities.
(4) The applicant shall prove to the satisfaction of the
Zoning Hearing Board that each lot will include adequate off-street
parking areas and loading areas or a permanent legally binding method
to ensure joint use of such facilities.
(5) See Planning Commission review provisions in Article
I for a special exception.
(6) The applicant shall prove that there will be an adequate
mechanism for joint ownership and/or maintenance of any shared facilities
or features.
J. Approval granted prior to passage of chapter. A proposed
structure or use that is granted a zoning permit, building permit
or subdivision or land development approval prior to the adoption
of this chapter shall be deemed a legal nonconforming use, provided
that:
(1) The construction of the structure or use was actually
started prior to the adoption of this chapter;
(2) The ground story framework, including the second tier
of beams, is completed within six months of adoption of this chapter;
and
(3) The entire structure or use is completed or installed
and ready for operation or occupancy within one year of the adoption
of this chapter.
The following regulations apply to access from
a lot to a public street:
A. Each lot with less than 250 feet of frontage on an
arterial street shall have not more than one access point involving
left-hand turns onto each such street, and no lot with 250 feet or
more feet of total frontage on an arterial street shall have more
than two access points involving left-hand turns onto any such arterial
street.
(1) This provision shall not apply to the following: construction
of new streets onto an existing arterial street or access points that
are clearly limited to use by only emergency vehicles.
(2) A separate ingress point and a separate egress point
shall be considered one access point, if well-marked.
B. Shared driveways. Where practicable, access to two or more nonresidential lots should be combined and/or shared and/or coordinated to minimize the number of access points onto an arterial street. Shared parking lots and driveways connecting adjacent nonresidential lots are strongly encouraged. See possible reduction of parking requirements in §
445-58B.
C. Driveway separation and setback. The edges of driveways
entering onto an arterial or collector street shall be a minimum of
12 feet apart. The center line of a driveway entering onto a street
shall be a minimum of 50 feet from the intersection of rights-of-way
of two public streets. Driveways shall be set back a minimum of three
feet from any side lot line of a dwelling, unless the driveways are
approved by the City as shared driveways or unless dwellings are attached
along such lot line.
D. Width. A driveway shall have a maximum width of 35
feet measured at the existing right-of-way line, except as may be
increased by the City Engineer or PennDOT to provide sufficient turning
radii for trucks or buses.
E. Ramps. Access shall not be provided to an arterial
street within 300 feet of the intersection of such street with an
off-ramp ramp from an interchange of an expressway.
The following shall apply unless a more restrictive
provision is established under a future City building code:
A. If a building is to be demolished that is attached
to another building that is not to be demolished on another lot and
the party wall is to be exposed, then the owner of the building being
demolished shall, at his/her expense, preserve the exposed party wall
by permanently waterproofing the party wall on the exposed side. Such
waterproofing shall involve stucco, brickote, gunite or other approved
noncombustible materials.
B. This provision shall not apply to buildings demolished
by the City of Scranton or the Scranton Redevelopment Authority or
if an active development plan has been approved by the City for the
development of a new building attached to such wall.