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Township of Middle Smithfield, PA
Monroe County
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Table of Contents
Table of Contents
A property owner has a constitutional right to continue a nonconforming condition and the Zoning Officer(s) shall issue to a property owner a zoning permit for any nonconformity so long as the property owner can prove to the Zoning Officer that the lot, use or structure was lawfully in existence as of the time of the enactment of an ordinance with which the lot, use or structure is in violation. Once a zoning permit has been issued for the nonconformity, the nonconformity can continue until it is abandoned. A preexisting nonconforming condition for which a zoning permit is issued creates a vested property right that shall run with the land, not the owner. A use or structure that is approved by the Township and subsequently becomes part of an Overlay District shall not be considered a nonconforming use. Uses and structures with no vested rights are illegal and require removal.
Nonconforming lots in all zoning districts. A nonconforming lot enjoys the protections afforded by such attribution; however, such lot shall be developed in conformity with all applicable district regulations other than minimum lot area, and lot width, including side and rear yard setbacks. Improvement of a nonconforming lot cannot otherwise violate other dimensional requirements or increase the existing nonconformity, except pursuant to variance application procedures as hereinafter set forth:
A. 
Permitted construction on a nonconforming lot. A single, permitted-by-right principal use and its customary accessory uses may be constructed, reconstructed or expanded on a nonconforming lot, provided all of the following additional requirements are met:
(1) 
The lot must be a lawful nonconforming lot of record. All federal, state and local wetland regulations shall be met.
(2) 
Sewer and well requirements shall be met.
(3) 
If the subject lot is in a recorded subdivision having yard setback requirements set forth on the recorded plan or in the recorded deed, those delineated yard setbacks shall be applied.
(4) 
If no yard setback requirements are set forth on the recorded plan or in the recorded deed, the following shall be applied for a single-family dwelling unit:
(a) 
Lots having a width of 100 feet or greater but less than 150 feet shall have a minimum side yard setback of 20 feet.
(b) 
Lots having a width of 79 feet or greater but less than 100 feet shall have a minimum side yard setback of 15 feet.
(c) 
Lots having a width of 49 feet or greater but less than 79 feet shall have a minimum side yard setback of 12 feet.
(d) 
Lots having a depth of less than 100 feet shall have a minimum front yard setback of 30 feet.
(e) 
Lots having a depth of less than 100 feet shall have a minimum rear yard setback of 20 feet.
(f) 
Triangular lots shall have a minimum front yard setback of 25 feet.
(g) 
Triangular lots shall have a minimum rear yard setback of 15 feet.
(5) 
Nonconforming lots in nonresidential districts. If a nonconforming lot is located in a nonresidential district, then a building may be constructed on it for any use permitted in that district in which the lot is located, provided that the off-street parking and loading requirements, including all yard requirements for the applicable district, are complied with.
A structure that is nonconforming may be altered, reconstructed, enlarged and/or expanded, including an extension of a nonconforming building footprint, so long as the alteration, reconstruction, enlargement and/or expansion does not create a new dimensional nonconformity or worsen an existing dimensional nonconformity without the granting of a variance. In the case of a nonconforming structure which is used by a nonconforming use, any expansion shall also meet the requirements for nonconforming uses as set forth in this chapter.
A. 
Prior certificate of nonconformity. If a property has been previously issued a certificate for a nonconforming structure or a certificate for a structure containing a nonconforming use and said nonconforming structure is subsequently partially damaged or destroyed, then the landowner has a right to demolish and rebuild as follows:
(1) 
An application for a zoning and building permit must be submitted within 18 months after the date of damage or destruction;
(2) 
Work must commence within six months of the issuance of the building permit;
(3) 
No new nonconformity or increase in nonconformity may be created by any reconstruction; and
(4) 
The property must be properly secured during such time in such a way to keep out trespassers and to avoid harm to neighboring properties.
B. 
No prior certificate of nonconformity. If the property did not have a certificate for a nonconforming structure or a certificate for a nonconforming use prior to the nonconforming structure being partially damaged or destroyed, the Zoning Officer shall issue to a property owner a zoning permit for any nonconformity so long as the property owner can prove to the Zoning Officer that the lot, use or structure was lawfully in existence as of the time of the enactment of an ordinance with which the lot, use or structure is in violation. The property owner may then proceed in compliance with § 042-040A.
C. 
C-1 Zoning District. Within the C-1 Zoning District only, a nonconforming structure, with respect to front yard setback requirements, which contains a conforming use and for which the nonconforming structure has been issued a certificate of nonconformity, may be demolished and rebuilt at the existing nonconforming setback line, provided that the following conditions are met:
(1) 
The new structure shall be located no closer to the street line at any point than the prior structure was located; and
(2) 
The building footprint that lies within the required front yard setback shall be no greater after reconstruction than the building footprint that was located within the required front yard setback prior to removal.
A. 
A nonconforming use may be expanded (or subject to a series of expansions) so long as the total percentage increase of the nonconforming condition that existed at the time of enactment of this ordinance creating the nonconforming condition is not increased to greater than 100% of the nonconformity, pursuant to the procedures as outlined for a public hearing with the Zoning Hearing Board.
B. 
Variance from percentage limitation. A property owner may seek a variance from the percentage limitation so long as the property owner can satisfy the following four factors:
(1) 
That an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by unique physical circumstances of the property for which the variance is sought;
(2) 
That a variance is needed to enable the party's reasonable use of the property;
(3) 
That the variance will not alter the essential character of the district or neighborhood or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public's welfare; and
(4) 
That the variance will afford the least intrusive solution.
The nature of a nonconforming use is determined from the actual use to which the property is put, rather than from the identity of the users. A modification of a nonconforming use to a new or changed use is prohibited subject to the following:
A. 
A proposed use need not be identical to the current use; it need only be sufficiently similar to the nonconforming use so as not to constitute a new or different use;
B. 
A change in technology is a continuation of a use;
C. 
A change in the intensity of a use is a continuation of a use; and
D. 
A change in use necessitated for compliance with a state or federal law is not an expansion.
A. 
Generally. A property owner may continue to operate under the protections of a nonconforming status until such time as the use has been abandoned.
B. 
Burden of proof. The Township bears the burden of proving abandonment, which is established by a two-pronged test:
(1) 
Intent to abandon; and
(2) 
Actual abandonment.
C. 
Discontinuance provision. If a nonconforming use has not been used for a period of 18 consecutive months, this failure to use the nonconforming use shall establish the intent to abandon the nonconforming use.
(1) 
Once the municipality establishes the intent to abandon, the burden of persuasion shifts to the party challenging the claim of abandonment.
(2) 
If the challenger introduces evidence of contrary intent, the presumption of intent to abandon is rebutted, and the burden of persuasion shifts back to the party claiming abandonment.
D. 
Actual abandonment. Actual abandonment cannot be inferred from or established by a period of nonuse alone; the municipality must establish actual abandonment through the property owner's overt acts or failure to act.