The provisions of this section apply to actions
in connection with nonconforming uses, structures, and lots as created
by the initial enactment of this chapter or by any subsequent amendment
thereto. The above sentence shall not apply to landscaping, sidewalks,
and parking requirements within any commercial district. Any change
of site within such district that triggers site plan approval or entails
a change of use requires that the site come into compliance with the
ordinance with respect to parking lot layout, landscape screens, plantings,
buffers and curb cuts, unless it is impossible to meet these standards.
In all cases, there shall be some landscape buffer between the public
right-of-way and off-street parking lots.
A.
This Zoning Ordinance shall not apply to structures
or uses lawfully in existence or lawfully begun, or to a valid building
or special permit issued before the first publication of notice of
the public hearing on this chapter or to any other exemptions in accordance
with MGL c. 40A, § 6. The ordinance shall apply to any change
or substantial extension of such use, to a building or special permit
issued after the first notice of said public hearing, to any reconstruction,
extension or structural change of such structure, and to any alteration
of a structure begun after the first notice of said public hearing
to provide for its use for a substantially different purpose or for
the same purpose in a substantially different manner or to a substantially
greater extent. Notwithstanding the above, nothing in this section
shall be construed to allow a change of a nonconforming use to a new,
nonconforming medical or retail marijuana use.
B.
A finding, as used in this chapter, requires that
the Zoning Board of Appeals determine that a change, expansion or
alteration to a preexisting nonconformity will not be substantially
more detrimental to the neighborhood than the existing nonconforming
nature of the structure, lot and or use. The Zoning Board may impose
conditions as part of approving a finding.
C.
Applications for findings, as allowed in this chapter,
shall follow the same procedural requirements as special permit applications;
however, a finding shall be granted upon the vote of a simple majority
of the Zoning Board of Appeals.
Legally preexisting nonconforming structures, uses, or lots may be changed, extended or altered as set forth below, except as noted in § 350-9.2A above. If a use is not eligible under one subsection, proceed to the next subsection. Changes to nonconforming uses in the FVC, FVG, CB and all CB subdistricts shall be subject to this section. However all other nonconforming aspects on a parcel in these zones are subject to §§ 350-21 and 350-22 as applicable.
A.
A preexisting nonconforming structure or use may be
changed, extended or altered:
(1)
As-of-right if the expansion/change itself meets
all the dimensional and use requirements of the current zoning.
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(2)
As-of-right in a residential district, when
said change is from a preexisting nonconforming use to a conforming
residential use, and there are no changes to the exterior of the structure
or lot and no new nonconformities are created by such change/conversion.
(3)
As-of-right when said change or alteration is
limited to rebuilding a single- or two-family home destroyed by fire
or other natural disaster within two years of the disaster. Reconstruction
must either meet the current zoning requirements or fall within the
same footprint and height of the destroyed home so as not to expand
the nonconforming nature of said home.
(4)
As-of-right when said change or alteration is
limited to rebuilding any other building not more than 50% destroyed
by fire or other natural disaster when the change is limited to rebuilding
or replacing the structure within the preexisting footprint and height
of the existing structure or within an area and height that conforms
to all dimensional requirements and all construction occurs within
two years of the disaster.
(5)
As-of-right, if the expansion (vertical or horizontal)
is for a residential use and does not extend either further than five
feet into a required setback or further than the existing nonconforming
structure, whichever is less and such extension does not create any
new zoning violation (such as further reducing a setback or open space).
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(6)
As-of-right, if the expansion (vertical or horizontal)
is for a residential use and does not extend either further into a
required setback than the existing nonconforming structure, and such
extension does not create any new zoning violation (such as further
reducing a setback or open space), and the applicant provides written
evidence satisfactory to the Building Commissioner that all owners
of all parcels within 300 feet of the subject property have no objection
to the expansion.
(7)
With a finding from the Zoning Board of Appeals
so long as the change does not involve a sign (see § 350-7
for signs) and § 350-9.3A(5)above does not apply and when
the expansion extends (vertically or horizontally), but does not increase
the nonconforming nature of the property and does not create any new
zoning violation (such as further reducing a setback or minimizing
open space).
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(9)
With a variance, for any use except for a single-
or two-family, when said change, extension or alteration will create
any new violation of the present zoning requirements or if change
is an expansion of preexisting nonconforming retail use.
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(10)
With a special permit for a single- or two-family home when the Zoning
Board makes a finding that the change which includes new zoning violations
(such as reduction of open space, new setback encroachments or further
encroachments into the setback, etc.) will not be substantially more
detrimental to the neighborhood than the existing nonconforming single-
or two-family structure.
(11)
With a combination of a finding and variance
when applicable.
B.
A conforming use on a preexisting nonconforming lot:
A conforming use on such a lot may be changed, extended or altered:
(1)
As-of-right to the same conforming use in a
conforming structure, which meets all the dimensional, and density
provisions of the current zoning, except for the preexisting nonconforming
dimensional elements.
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(2)
With a finding from the Zoning Board of Appeals when said change, extension or alteration is to a different conforming use which a) meets all the dimensional and density provisions of the current zoning, except for the preexisting nonconforming dimensional elements and b) does not trigger a review under other sections of the Zoning Ordinance by any other board. When no other board is required to review the proposed change, extension or alteration, the Zoning Board shall make a finding as defined in § 350-9.2B. If the proposal triggers review by another Board under Subsection B, above, no ZBA finding shall be required.
(3)
With a variance to a conforming use which requires
a larger minimum lot area, minimum lot width or frontage or minimum
lot depth than is required for the present use or creates any other
new zoning violation.
(4)
With a combination of a finding and variance
when applicable.
C.
A preexisting nonconforming lot may be changed, extended
or altered:
(1)
As-of-right if such change, extension or alteration
to the lot does not increase the nonconforming nature of the property,
only brings the lot into total conformance with the zoning requirements
in existence at the time of said change, extension or alteration,
or adds to the lot.
(2)
As-of-right whenever a group of adjoining lots
in common ownership is separated or the ownership of one or more lots
changed, if each of the lots will conform to all provisions of this
chapter, or if the lots are residential lots and each lot contained
a principal residential structure at the time the adjoining lots came
under common ownership and no changes were made to the structures
or lots during the time in which the lots were commonly owned, in
a way that increased the nonconforming nature of these lots.
Any increase in area, frontage, width, yard
or depth requirements of this chapter shall not apply to a vacant
lot for single- and two-family residential use, which:
A.
Has at least 5,000 square feet of area and 50 feet
of frontage; and
B.
Is in an area zoned for single- or two-family use
(A special permit must be obtained if one is required.); and
C.
Conformed to existing zoning requirements when the
lot was legally created, if any; and
D.
Is in separate ownership prior to the City Council
vote which made the lot nonconforming, and has maintained its separate
identity.
Any nonconforming use of a conforming structure
and/or lot which has been abandoned or discontinued for a continuous
period of two years or more shall be deemed extinguished and shall
not be reestablished. For purposes of this section, the abandonment
period shall not be considered broken by temporary occupancy, except
when such temporary occupancy is for a period of 60 or more consecutive
days and when said temporary occupancy involves the exercise of nonconforming
use.
