[Amended 12-21-1990 by L.L. No. 1-1990; 6-10-2009 by L.L. No.
5-2009]
It is acknowledged that certain nonconforming uses, noncomplying
buildings and substandard lots were created upon enactment of the
first Village of Tuxedo Park Zoning Law and may yet be created again
upon future amendments to the Zoning Law. The purpose of this article
is to set forth the parameters of the protection afforded to each
category of presently protected noncompliance with Zoning Law requirements
caused by the original enactment of the Zoning Law, as well as by
any amendments thereto. In all cases, for protection to be afforded
under this article, there must have been, at the moment immediately
before that noncompliance was created as the result of a legislative
act, a legal and conforming use, a complying structure or a legally
created lot then in existence. Any failure to meet Zoning Law requirements
not protected hereunder shall constitute a violation of the Zoning
Law.
The use of a building or structure, lot or land, or part thereof,
lawfully in existence on February 17, 1987 (the day immediately preceding
the effective date of this chapter), or the use of a building or structure,
lot or land, or part thereof, lawfully in existence on the day immediately
preceding the effective date of any amendment to this chapter affecting
such use, and consistently carried on thereafter, which does not conform
to the use restrictions presently applicable in the zoning district
in which that use is being conducted, may be continued indefinitely,
regardless of change of title, possession or occupancy, subject to
the following:
A.
No nonconforming use shall be enlarged, altered, extended or restored
or placed on a different portion of the lot or parcel of land occupied
by such use on the effective date of this chapter (or on the effective
date of any amendment thereto affecting such use), nor shall any external
evidence of such use be increased by any means whatsoever.
B.
No nonconforming use shall be moved to another location on a separate
lot or parcel where such use would be nonconforming.
C.
No nonconforming use shall be changed to another nonconforming use
without approval by the Board of Zoning Appeals, and then only by
grant of a use variance upon satisfactory proof of eligibility for
same.
D.
A nonconforming use may be changed to any conforming use and the
applicable district bulk regulations and off-street parking requirements
shall not apply to such change of use or to alterations made in order
to accommodate such conforming use, provided that such alterations
do not create any new or additional nonconformity in regard to such
regulations or requirements nor increase the degree of any such noncompliance
with bulk requirements as may then exist.
E.
A nonconforming use that has been changed to a conforming use or
been granted a use variance to carry on a different nonconforming
use shall immediately and forever lose the limited protection afforded
by this section.
F.
No nonconforming use shall be reestablished if such use has been
abandoned 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. Discontinuance of a nonconforming use for a period of one year
or more shall create a rebuttable presumption of abandonment.
G.
Domestic occupancy. The prior use of accessory or principal buildings
by servants or employees does not establish use by one or more families.
A building or structure lawfully existing on February 17, 1987
(the day immediately preceding the effective date of this chapter),
or a building or structure lawfully existing on the day immediately
preceding the effective date of any amendment to this chapter affecting
such building or structure, which does not comply with the building
regulations or bulk table restrictions presently applicable in the
zoning district in which that building or structure is located may
continue to be used indefinitely subject to the following:
A.
Repairs and maintenance. Nothing in this article shall be deemed
to prevent normal maintenance and repair, structural alteration within,
moving or reconstruction of, or enlargement of any noncomplying building,
or any demolition necessary in the interest of public safety (unless
otherwise prohibited by the provisions of the Code of the Village
of Tuxedo Park), provided that such action does not increase the degree
of, or create any new, noncompliance with the district regulations
and bulk table provisions pertaining to such building or structure.
B.
Any alteration of a building or structure that increases the degree
of, or creates any new, noncompliance shall result in a loss of protected
status, e.g., any additional incursion into a required setback makes
not only that particular setback more noncomplying but makes the entire
building and property more noncomplying as well. Thus, whenever a
property owner proposes to pierce the envelope of protected noncompliance
through submission of a plan for construction making his or her building
or lot more noncomplying in any fashion, full compliance with all
bulk table specifications, or variances for all such nonconformities,
is required.
C.
An increase in degree of noncompliance or creation of a new noncompliance
with the district regulations and bulk table provisions within the
meaning of this article shall include all of the following:
(1)
The lateral extension of a noncomplying portion of a building
for a distance greater than presently exists, even where the distance
of that building from the property line remains the same. Thus, for
example, the owner of a building that does not comply with the applicable
side yard requirement may not, without obtaining a variance, build
an extension on the side of his or her building, running toward either
the front or the rear of the existing side footprint, even if it comes
no closer to the property line than the existing building.
(2)
An upward expansion of a building, even at the same dimension
as an existing setback noncompliance (because such an expansion increases
the mass or volume of the noncompliance).
(3)
The in-filling of open-air space (such as a porch) at the same
dimension as an existing setback noncompliance (because such an expansion
increases the mass or volume of the noncompliance).
(4)
The extension of an existing noncomplying building closer to
a property line than bulk rules require (but less than the currently
existing nonconformity) where the portion of the building to be so
extended is currently in compliance with bulk requirements and is
a different portion of the building than where the current noncompliance
exists.
D.
Reconstruction of a damaged building or structure:
(1)
A noncomplying building or structure (whether housing a conforming
or a nonconforming use) which has been damaged or destroyed by fire
or other causes may be rebuilt provided that there will be no increase
in degree of noncompliance or creation of a new noncompliance with
the district regulations and bulk table provisions as a result.
(2)
Application for a permit to rebuild or restore the damaged portion
of any noncomplying building damaged or destroyed as set forth above
shall be filed within five years of the day of such damage, unless
extended by the Board of Trustees for up to an additional five years,
and shall be accompanied by plans for reconstruction which shall comply
with the requirements set forth above. If such permit is issued, it
shall expire two years thereafter, unless reconstruction in accordance
with the approved plans has been completed.
E.
Variance applications. In all cases where application is made to increase the degree of or create any new noncompliance with regard to the district regulations and bulk table provisions pertaining to such building or structure, the applicant shall be required to identify all existing noncompliance with code and to identify any and all proposed increases in the degree of noncompliance as defined in Subsection C, above and the applicant shall be required to seek a variance for not only the new or increased items of noncompliance but for all existing noncompliance as well. The Board of Zoning Appeals shall review and separately consider and grant (or deny) each variance requested. Upon granting of a variance under this subsection, the property in question shall immediately and forever lose the limited protection afforded by this article.
