A.
Purpose. The purpose of this article is to encourage the discontinuance
of nonconforming uses or the change of nonconforming uses to conforming
or more conforming uses, and to allow and regulate lawfully existing
uses, structures and lots not in conformance with the applicable regulations
of the Zoning Ordinance. This article establishes provisions for three
classes of nonconformity relating to:
B.
Multiple nonconformities. A single property may exhibit one or more
types of nonconformity. It is the intent of this chapter that each
type of nonconformity be treated distinctly, even where one or more
nonconformities occur together on a given property.
C.
Change in ownership or management. Nothing herein contained shall
be construed as prohibiting change in tenancy, ownership, or management
of a nonconforming lot, use, or structure, provided that such change
is otherwise lawful.
D.
Applicability in Shoreland Protection District. Nonconforming lots
of record and nonconforming structures within the Shoreland Protection
District shall also be governed by the provisions of RSA 483-B:10
and 483-B:11, Shoreland Protection District, Nonconforming Lots of
Record and Nonconforming Structures, respectively. In the event of
a conflict between applicable regulations, the more restrictive conditions
shall apply.
A.
Evidence of a nonconforming use. In reviewing an application for
a building permit or other application for land use change or structural
alteration involving a nonconforming use, building or lot, the Director
of Planning and Community Development or his or her designee shall
make a determination as to the existence of a nonconforming use. In
so doing, the Director of Planning and Community Development or his
or her designee may require the property owner, or his agent, to produce
acceptable evidence attesting to said legal nonconforming status.
Such evidence shall include, but is not restricted to such documents
as rent receipts, affidavits, documentation of utility services, or
other information as may be deemed to be necessary in a particular
case.
[Amended 8-14-2000 by Ord. No. 07.2000.07]
B.
Status of uses authorized by special exception. Any use in lawful
existence at the time of passage or amendment of this Zoning Ordinance
which would thereafter require a special exception under its terms
shall without further action be deemed a conforming use. Any enlargement
or replacement of such use, in buildings, or on land, shall require
a special exception as though it were a new use.
C.
Nonconforming use status limited to permanent lawful uses. The casual,
temporary, or illegal use of land or structures, or land or structures
in combination, shall not be sufficient to establish the existence
of a nonconforming use or to create rights in the continuance of such
use.
D.
Nonconformity created through public taking. Where the dimensional
nonconformity of a structure is created by government acquisition
of property such structure shall not be regarded as a nonconforming
use, and may be continued, structurally altered, reconstructed, repaired
or enlarged so long as it remains an otherwise lawful use; provided,
that any structural change, repair, addition, alteration or reconstruction,
shall not increase, extend, enlarge or affect the dimensions which
are deficient.
A.
Evidence of nonconforming lot. A nonconforming lot shall be deemed
to exist where the Director of Planning and Community Development
or his or her designee finds, based on evidence submitted by the property
owner, that all of the following conditions are true:
[Amended 8-14-2000 by Ord. No. 07.2000.07]
(1)
The lot was created prior to the effective date of this chapter,
or prior to the relevant amendments affecting the conformity of the
lot, and no further division has occurred since that date.
(2)
The lot has not previously been reviewed under this article.
(3)
The lot met the minimum size, frontage and area standards which were
in effect when the lot was created.
(4)
The lot does not conform with present size, frontage, or area standards
for the zoning district, and the present owner does not own, and has
no contract, option or other enforceable legal right to acquire any
adjoining property to the extent necessary to make the lot conforming
with present standards, or is prevented by law from doing so.
B.
Date lot was created. The date of creation of a lot shall be considered
established by its most recent change in configuration by parcel area
reduction, consolidation, land division, vacation or other official
action, if such was required.
C.
Actions by land use boards may not create nonconformity. Nonconforming
lots shall not be created through the grant of a variance, special
exception, conditional use or other development permit, except to
the extent authorized within this article.
D.
Use of a nonconforming lot. A lot which failed to conform with size
or dimension requirements which were in effect under ordinances or
regulations at the time of division shall not by reason of that defect
alone be denied any land development permit otherwise available under
current ordinances. Nonconforming lots of record may be developed
for the purposes of the zoning district under the following conditions.
(1)
Substandard lot size. When a nonconforming lot can be used in conformity
with all applicable regulations except for minimum lot size, then
the lot may be used for a permitted use, subject to all other standards
which apply to that use under the Zoning Ordinance. However, no use
which requires a lot size greater than the established minimum lot
size for a particular zone is permissible on a nonconforming lot.
(2)
Inadequate dimensions to meet setback requirements. When the proposed
use of a nonconforming lot is one that would be conforming in all
respects, except that the applicable setback requirements cannot reasonably
be complied with, then the Zoning Board of Adjustment may issue a
special exception for deviation from setback requirements if it finds
that:
(a)
The property cannot reasonably be developed for the proposed
use without the setback deviation.
(b)
These deviations are necessitated by the size and shape of the
nonconforming lot and not for convenience of the owner or financial
advantage.
(c)
The property can be developed as proposed without causing a
significant adverse impact on surrounding properties or the public
health or safety.
A.
Repair and maintenance. Normal repairs, renovations and maintenance may be made to any nonconforming building or structure, except as provided for in § 235-68 of this article, Abandonment; termination due to abandonment. Nothing in this chapter shall prevent the strengthening or restoring to safe condition any building or part thereof upon order by any official charged with protecting public safety.
B.
Replacement.
(1)
Residential accessory structures. Any nonconforming residential accessory
structure such as a garage, shed, deck or porch may be razed and replaced
in its entirety, provided that it is replaced in the same location,
and for the same purpose, with no expansion in the size of the structure
whatsoever.
(3)
Casualty loss. Any nonconforming structure which is completely or
substantially destroyed by casualty loss may be replaced with a similar
structure which has the same dimensions and meets the setbacks of
the previously existing structure. A good faith effort must be made
to replace the structure within one year of the date of the loss,
as minimally exhibited by the possession of a building permit.
(4)
Any nonconforming structure which contains a conforming use may be
replaced with a similar structure which has the same dimensions and
meets the setbacks of the previously existing structure. A good faith
effort must be made to replace the structure within one year of the
date of the loss, as minimally exhibited by the possession of a building
permit.
C.
Structural alterations.
(1)
Reduction in nonconformity. Nonconforming structures may be partially
replaced or replaced with a new structure which reduces the nonconformity
of any dimensional requirements.
(2)
Additions. Additions may be made to nonconforming structures which
contain conforming uses provided that the area of the addition meets
the current dimensional requirements and the development of the lot
does not result in nonconformity due to green space requirements.
A.
Continuation of use. Where a nonconforming use, or where nonconforming
characteristics of a use exist, such as signs, off-street parking
and loading, lighting, landscaping or similar features, such nonconforming
uses and characteristics of use may continue except as provided in
this article.
B.
Limits on expansion of a nonconforming use. A nonconforming use may be extended to unused parts of a lawfully existing building or structure existing as of the date of this chapter. Any other expansion requires a conditional use permit. The Planning Board may grant a permit only after it makes a finding that the following standards have been met, in addition to those listed in § 235-75A through H. The Board may impose any reasonable conditions to insure compliance.
[Amended 5-22-2000 by Ord. No. 05.2000.05[1]]
(1)
Documentation is submitted and the City has verified that all aspects
of the existing use have been lawfully established and that there
are no current land use violations on the site.
(2)
The existing and proposed expansion of the use meets all applicable
requirements of this chapter, to be applied as if the use were permitted.
(3)
Special consideration has been made to promote the overall purpose
of the district in which the nonconforming use exists and to design
the use so that the appearance is one of a conforming use.
C.
Replacement of nonconforming use authorized by special exception.
A special exception may be issued for the replacement of a nonconforming
use with another nonconforming use subject to the standards below
and to the conditions attached to such exception by the Zoning Board
of Adjustment.
(1)
There will not be an adverse impact on the surrounding neighborhood.
(2)
The replacement will be equally or more conforming with the purposes
of this chapter and the intent of the zoning district. In making these
determinations, the Zoning Board of Adjustment must find that all
of the following conditions will be met:
(a)
The proposed replacement would not result in an increase in
noise, vibration, dust, odor, fumes, glare or smoke detectable at
the property line.
(b)
The numbers and kinds of vehicular trips to the site will be
comparable to or lower than those associated with the existing use.
(c)
The replacement will not place increased demand on the amount
and nature of outside storage or loading requirements, and there will
be no net loss in the number of existing off-street parking spaces
serving the existing use(s).
(d)
The visual appearance of the site and structure will either
remain unchanged or will be improved.
(e)
The proposed hours of operation for the use will result in an
equal or lesser impact on the neighborhood.
(f)
Nonconforming characteristics of the existing use including
signs, loading, lighting and landscaping, will be brought into conformance
with the requirements of this chapter.
(g)
The nonconforming use area of the lot will not be increased.
(h)
The gross square foot floor area of the building housing the
existing nonconforming use will not be expanded as a result of the
replacement.
(i)
The replacement will be equally or more compatible with the
neighborhood, will contribute to neighborhood socioeconomic needs
or will otherwise be in the public interest.
(3)
The applicant surrenders all rights in the previously existing nonconforming
use.
The term "abandonment," as used herein, shall mean the voluntary
discontinuance of a nonconforming use or the occupancy of a nonconforming
structure. Normal, seasonal cessation of a use or a temporary discontinuance
for purposes of maintenance, rebuilding after damage or destruction
or maintenance or improvements permitted under this article shall
not be included in calculating the period of discontinuance. Any one
of the following shall constitute evidence of abandonment of a nonconforming
use:
A.
Failure to make a good faith effort to take the necessary steps to
resume the nonconforming use or occupancy with reasonable dispatch
in the circumstances, such as advertising of the property for sale
or for lease.
B.
Discontinuance of the occupancy or nonconforming use for 12 consecutive
months.
