Town of Harvard, MA Article II Existing Lots, Structures and Uses (See the Zoning Act, Section 6)

[Amended 3-5-1966 ATM by Art. 43; 3-22-1969 ATM by Art. 37]

§ 125-3 Non-conforming structures and uses.

[Amended 3-6-1971 ATM by Arts. 33 and 34; 3-3-1973 ATM by Art. 37; 3-26-1977 ATM by Art. 31; 3-25-1978 ATM by Art. 23; 2-29-1980 ATM by Art. 24; 3-28-1987 ATM by Art. 69; 3-27-1993 ATM by Art. 10; 4-30-1994 ATM by Art. 36; 10-25-1994 STM by Art. 6; 12-3-2002 STM by Art. 19; 4-6-2013 ATM by Art. 42; 4-1-2014 ATM by Art. 40]

Non-conforming uses and structures shall be regulated as provided in MGL c. 40A, § 6, and as provided in this bylaw. At adoption of this bylaw as amended, any lawful existing structure (except an off-site sign), or use of a structure or use of land, may continue as such structure existed or in the manner and to the extent such structure or land was used at the time of first publication of notice of the public hearing for such adoption, subject to the provisions of this § 125-3. A building or special permit issued before such first publication of notice of hearing may continue in effect or be made effective except as otherwise provided (see § 125-49, Enforcement, and § 125-46, Special permits). However, any other building or special permit shall conform to such bylaw (change), and a structure or use may be extended or otherwise changed only as specifically provided in this bylaw.

In making a determination under § 125-3 whether a change, extension, or alteration to a non-conforming use or structure will be more detrimental than the existing non-conforming use or structure to the neighborhood, the Board of Appeals will apply the factors listed in § 125-20A and will identify other site-specific impacts that affect quality of life in the neighborhood.

A. Non-conforming structures. For the purposes of this bylaw a lawful non-conforming structure is one that conformed to the bylaw at some past time or predates the bylaw; and became nonconforming solely as the result of the adoption of the bylaw or amendments thereto. If a structure conformed at more than one time, only the most recent instance of conformity shall be considered.

B. Non-conforming one- and two-family dwellings.

(1) A non-conforming one- or two-family dwelling may be repaired (see "erect," § 125-2, Definitions), may be moved or enlarged or otherwise altered for a use permitted by the bylaw, as a matter of right, provided that such alteration does not:

(a) Produce or increase the degree of any non-conformity in lot-structure relations or building height, and the changes conform to the bylaw as amended; and

(b) Cumulatively over time increase the footprint of a one- or two-family dwelling by more than 20% and/or alter the gross floor area by more than 20% from that which existed at the time the dwelling first became non-conforming.

Figure 1

Figure 1: Example of an extension of a non-conforming one- or two-family dwelling that does not increase the degree of non-conformity.

[Amended 4-5-2016 ATM by Art. 51]

(2) By special permit granted by the Board of Appeals a non-conforming one- or two-family dwelling may be moved or enlarged or otherwise altered for a use permitted by the bylaw, if such non-conformity is increased or intensified, provided the Board finds, in addition to the requirements of § 125-46, Special permits, the alterations:

(a) Would have been permitted before the structure became non-conforming (see Attachment A: Historical Table of Harvard Basic Lot Dimensions); and

Attachment A Historical Table of Harvard Basic Lot Dimensions
Year	Frontage (feet)	Width (feet)	Land Area	Setback From Street (feet)	Setback from Neighbors (feet)
1951	100	N/A	20,000 sq ft	40abc	10
1954	75	125	30,000 sq ft	40bcd	10
1956	75	150f	1 acre	40bce	25
1963	75	200	1.5 acres	40	25
1964	75	200	1.5 acres	40eg	25
1965	75	200	1.5 acres	40e	25
1966	75	200	1.5 acres	75d	40
1968	75	200	1.5 acres	75d	40
1969	120	200	1.5 acres	75d	40i
1970	120	200	1.5 acres	75d	40i
1971	120	200	1.5 acres	75d	40
1972	180	200	1.5 acres	75 or 100j	40
1987	180	200	1.5 acres	75 or 125j	40

a	From edge of travelled way
b	Except for residence accessory garage
c	Applies only to Town ways or highway
d	From roadway centerline
e	From street lot line
f	Measured at house, parallel to street
g	Eliminate exceptions for garages and private ways
h	Under sized lots, the greater of 25 feet or 20% of the maximum lot width
i	Undersized lots, 20% maximum lot width
j	100' and 125' is required along arterial streets, which are Ayer Road from the southerly crossing of Bowers Brook, approximately Station 140, to Ayer town line, and Massachusetts Avenue from Fairbanks Street to the Boxborough town line

(b) Will not be substantially more detrimental to the neighborhood than the existing non-conformity (see MGL c. 40A, § 6).

Figure 2

Figure 2: Example of an extension of a non-conforming one- or two-family dwelling that increases the degree of nonconformity that the Board of Appeals may permit by grant of a special permit.

[Amended 4-5-2016 ATM by Art. 51]

C. Non-conforming structures other than one- and two-family dwellings.

(1) By special permit granted by the Board of Appeals a lawful nonconforming structure other than a one- or two-family dwelling may be moved or enlarged or otherwise altered for a use permitted by the bylaw, if the Board makes a finding that such movement, enlargement or alteration will not be substantially more detrimental to the neighborhood than the existing non-conforming structure.

(2) The moving, enlargement or alteration, of a non-conforming structure so as to increase an existing non-conformity, or create a new non-conformity, including the extension of an exterior wall at or along the same non-conforming distance within a required yard setback, shall require a variance from the Zoning Board of Appeals.

Figure 3

Figure 3: Example of an extension of a non-conforming structure other than a one- or two-family dwelling that increases the degree of non-conformity, and that creates a new non-conformity, that the Board of Appeals may permit only by grant of a variance.

[Amended 4-5-2016 ATM by Art. 51]

(3) The repair, moving, enlargement, alteration and extension of and addition to any nonconforming structure and the construction of new on-site and off-site accessory structures owned by the Town of Harvard or leased by the Town, as lessor or lessee, and used for a Town library, Town museum, Town office, Town hall, Town protective services or other use by the Town of Harvard or its lessee and located on a parcel of land situated within 2,500 feet of the Town Center Intersection of Routes 110 and 111 shall be exempt from all provisions of this bylaw, except for § 125-39, Site standards.

D. Non-conforming uses.

(1) If a non-conforming use of a structure or land is changed to a conforming use, it shall not thereafter revert to its previous non-conforming use.

(2) A non-conforming use may be extended, altered, or otherwise changed, by special permit authorized by the Board of Appeals (see § 125-46, Special permits), provided:

(a) Such change, extension, or alteration will not be substantially more detrimental than the existing non-conforming use to the neighborhood; and

(b) If a non-conforming use is to be changed to a different use, the new use is permitted, subject to the use being in the same or less intense use category (see § 125-7 through § 125-9 and § 125-12 through § 125-14).

(3) A non-conforming use of a portion of an existing structure designed for the use may be extended throughout such structure, but only by special permit authorized by the Board of Appeals as in Subsection D(2).

(4) Use of land accessory to a non-conforming use of a main building may be extended only to meet site standards.

(5) Any use subject to § 125-39, Site standards, and/or § 125-38, Site plans, even though preexisting, is subject to such standards and approval upon expansion or alteration as provided in § 125-38, Site plans.

E. Abandonment.

(1) A non-conforming use which has been abandoned or not used for a period of two years or more shall not be reestablished. A non-conforming use which has been changed to a conforming use shall not be reestablished.

(2) A non-conforming structure which has been abandoned or not used for a period of two years or more shall be removed or it shall be altered or moved so as to conform to the bylaw as a new structure.

(a) In order to be "not used" under this subsection, the structure shall either have been in such disrepair as to require reconstruction (see definition of "erect") or (if a building) it shall have become uninhabitable.

(b) A structure will not be considered "not used" or "uninhabitable" while it is being modified to re-achieve use or habitability in accordance with a validly issued building permit or validly issued Board of Health permit under Title V of the State Sanitary Code if the work there under begins promptly, and is diligently pursued to a conclusion as provided in § 125-49B, Permits and licenses, and results in use or occupancy.

F. Reconstruction after catastrophe or demolition.

(1) Non-conforming structures which are damaged or destroyed by accidental cause, including fire, or otherwise damaged or destroyed without the consent of the owner, may be repaired or reconstructed upon the issuance of a building permit, provided that:

(a) Reconstruction of said premises shall commence within three years after such catastrophe or demolition.

(b) Building(s) as reconstructed shall be located on the same foot print as the original non-conforming structure, shall be only as great in volume or area as the original non-conforming structures, and shall meet all applicable requirements for setbacks and height.

(c) A special permit shall be required in the event that the proposed reconstruction would cause the structure to be located other than on the original footprint, or cause the structure to exceed the volume or area of the original non-conforming structure, and the non-conforming nature of the structure is not increased or intensified more than the original non-conformity.

G. Exception for historic merit. A non-conforming historic ruin located in a historic district (see the Town Historic Preservation Bylaw) may be preserved by site plan approval; it may be restored in whole or in part pursuant to a special permit from the Board of Appeals acting with advice from the Historical Commission as provided in § 125-46, Special permits, provided the Board of Appeals finds historic merit in the restoration and finds no substantial adverse impact on the neighborhood, and further provided that any improvements meet all of the environmental requirements of the bylaw as if for a new structure, including accessibility to emergency vehicles.

§ 125-4 Existing lots.

[Amended 3-3-1973 ATM by Art. 37; 3-28-1987 ATM by Art. 69]

(See "lot," § 125-2, Definitions.)

A. A lot may be changed in size if the change does not produce or increase the degree or extent of any nonconformity with the Bylaw. Lot size standards shall be those of basic lots unless:

(1) The lot is, or has been most recently, a conforming lot only under an alternative lot type of the Bylaw, in which case the standards shall be those of the alternative lot type; or

(2) The Bylaw specifically provides, for a particular use, for a lot to meet special requirements, in which case the standards shall be those associated with the special requirements.

B. Except where, for a particular use, the Bylaw specifically provides for a lot to be conforming or meet special requirements, a lawfully existing nonconforming lot may be used as if conforming to the Bylaw. A lot is a lawfully existing nonconforming lot only if the tract:

[Amended 4-5-1997 ATM by Art. 44]

(1) Has an area of at least 5,000 square feet and has access frontage of at least 50 feet; and

(2) Either existed as a lot at the initial adoption of the Bylaw or existed as a conforming lot until amendment of the Bylaw; and

(3) Has existed continuously as a lot since said adoption or amendment, with changes in size only as provided above.

§ 125-5 Access for the physically handicapped.

[Added 11-7-1992 STM by Art. 10]

(See also the Zoning Act, Section 3.) By special permit (see § 125-46, Special permits) the Board of Appeals may authorize the addition of an access ramp or elevator usable by the physically handicapped to a lawfully existing public building (see definition of "public building") where such addition otherwise produces or increases violations of the setback, bulk, or area provisions of § 125-30, Land-structure relations, § 125-37, Major buildings, or § 125-39, Site standards, of this Bylaw. The relief authorized shall be the minimum required, considering the public purpose, the placement of the building on the lot, the effect on traffic and pedestrian circulation, and the visual impact on the neighborhood. Such authorization shall not be the basis for further structural enlargements.