The purpose of this Article VI is to establish rules that apply to uses and structures initiated legally under previous land use regulations but that no longer comply with this Chapter 175, Zoning, as it has been amended. There are three types of nonconformity: nonconforming uses, nonconforming structures, and nonconforming lots. In any given situation, more than one of these types of nonconformity may apply to a particular land use or structure, in which case the applicable rules for each type of nonconformity must all be followed. Nonconforming uses, structures, and lots are legally permitted to be maintained in accordance with the provisions of this chapter. As used in this chapter, the three types of nonconformity are (these are also defined in Article XII):
A lot of record which was created legally but which no longer
complies with the area, shape, frontage, or locational provisions
of this chapter for the district in which it is located.
A structure which does not satisfy the dimensional requirements
of this chapter for the district in which it is located, but which
was not in violation of applicable requirements when constructed.
Any use lawfully existing at the time of the adoption or amendment of this chapter or any preceding zoning law or ordinance, where such use has continued but is not permitted by or does not conform with the use regulations of this chapter for the district in which it is located. A preexisting lawful use which is allowed only by special permit under this chapter shall be considered a conforming use unless it fails to comply with the site plan standards of Article IX.
A.
Continuation. Any use, any building or other structure, or any lot,
which existed lawfully (including by variance), on the effective date
of this chapter or any amendment thereto, and which fails to conform
to one or more of the provisions of this chapter or such amendment
thereto may be continued, subject to the provisions and limitations
hereinafter specified. Any business owner or tenant may continue to
operate an existing business, or any business in the same use category
as the existing business, in a zone where it is not permitted by this
chapter, and may sell or transfer it to another owner or tenant who
shall be permitted to operate the same business, or any business in
the same use category as the existing business, in the future.
B.
Enlargement.
(1)
Except as provided in Subsection B(2) below, nonconforming uses of land shall not be enlarged or extended and conforming or nonconforming buildings or other structures or parts thereof devoted to a nonconforming use shall not be enlarged, extended, or structurally altered, except to change to a permitted use or where the result of such changes is to reduce or eliminate the nonconformity. Nonconforming uses located in a building or other structure shall not be extended to occupy land outside such building or other structure. Nonconforming buildings or other structures shall not be enlarged, extended, or structurally altered, except where the enlargement or extension does not increase the nonconformity. The height of a nonconforming principal building that encroaches into a required front setback area may not be increased within the setback area.
(2)
Notwithstanding the provisions of Subsection B(1) above, a nonconforming use or structure may be enlarged by a maximum of 25% of its floor area or impervious surface coverage (whichever is less) by the grant of a special permit by the Zoning Board of Appeals, provided that the Board finds that the enlargement will have no greater impact on neighboring land uses and the public than the existing use or structure, that the enlargement will improve the appearance of the site, and that the enlargement will comply with applicable site plan criteria to the extent practical; and further provided that in the case of a proposed enlargement of a nonconforming structure used legally for business purposes in the HC, HM, OC, or M Districts, the Board shall be required to find only that the enlargement will have no greater impact on the public and on any neighboring residential or institutional uses than the existing structure and will not have an adverse impact on the appearance of the site.
C.
Moving. Nonconforming uses of land shall not be moved to another
part of a lot where such uses would also be nonconforming. Nonconforming
uses of a building or other structure shall not be moved or extended
to any part of the building or other structure not manifestly designed
and arranged for such use at the time the use became nonconforming.
Nonconforming buildings or other structures shall not be moved unless
the result of such move is to eliminate the nonconformity.
D.
Change in use.
(1)
Except as provided in Subsection A above or Subsection D(2) below, nonconforming uses of land, buildings, or other structures shall not be changed to any use which is substantially different in nature and purpose from the existing use unless the new use is permitted by this chapter and any required permits are obtained.
(2)
A nonconforming use may be changed to another nonconforming use by special permit granted by the Zoning Board of Appeals, provided that the Board finds that the new use will have no greater impact on neighboring land uses and the public than the existing use, that the new use will improve the appearance of the site, and that the new use will comply with all applicable site plan criteria, provided that no special permit shall be required for a change of use permitted under the last sentence of Subsection A above.
E.
Reduction or elimination of nonconformity. Any nonconformity that
has been reduced or eliminated shall not be increased or reestablished.
F.
Discontinuance and resumption. Nonconforming uses of land, buildings,
or other structures which have been discontinued or inactive for a
continuous period of at least two years from the time such uses became
nonconforming shall not thereafter be resumed. Uses that were discontinued
or that became inactive before zoning changes made them nonconforming
may resume within two years of their discontinuance or within one
year of the zoning change that made them nonconforming, whichever
period is longer. When a structure is vacant, its use shall be deemed
to be discontinued for the period of vacancy.
In addition to the foregoing, the following special provisions
and limitations shall apply to particular nonconformities:
A.
Signs. Signs that are nonconforming under § 175-39 shall be considered nonconforming structures under this chapter, and any increase in size, illumination, motion, or flashing of such signs shall be deemed to be an enlargement or extension producing an increase in nonconformity. Any nonconforming sign which is damaged or destroyed by fire or other casualty to an extent greater than 50% of the value of the sign as determined by the Zoning Administrative Officer shall not be restored, reconstructed, or replaced except by a sign which conforms to this chapter.
C.
Mobile homes and mobile home parks. Any mobile home lawfully existing
on the effective date of this subsection and used or occupied as a
dwelling may continue to be so used or occupied. New mobile homes
may be installed only within the MH Overlay District.
D.
Site development and landscaping. Where existing site development, including landscaping, fails to conform to the requirements of Article IX, the use and structures on the lot shall not be enlarged, extended, changed, or moved unless the nonconformity is eliminated; provided, however, that the Philipstown Planning Board may authorize continuation or reduction of the nonconformity under § 175-28.
E.
Moving of road center line. If a structure becomes nonconforming
as a result of the moving of the center line of a traveled way, such
structure shall be treated as a conforming structure with respect
to any resulting nonconformity.
F.
Planned development districts. Any development approved as a planned
development district (PDD) under prior zoning shall be permitted to
continue as approved under such zoning rules, including all conditions
of such approval. Any change in the site plan, where no change in
the permitted uses, intensity, or density is involved, shall require
site plan approval. Changes in use may be allowed by special permit
if such changes do not increase the impact of the development or allow
uses not authorized in the original PDD approval. Any other change
to a PDD shall require a zoning amendment by the Town Board to modify
the terms of the PDD approval.
Notwithstanding the foregoing provisions of this article, the
following shall apply to nonconformities:
A.
Casualty. If any nonconforming building or other structure, or any
building or other structure containing a nonconforming use shall be
damaged or destroyed by fire or other casualty, such building or other
structure may be restored or reconstructed and the use thereof resumed,
provided that such restoration or reconstruction does not extend the
nonconformity and is commenced within one year after the date of the
fire or other casualty and is completed within two years after such
date, which periods may be extended by the Zoning Board of Appeals
for good cause shown.
B.
Title. Changes of title, possession, or right of possession shall
not affect the right to continue a nonconforming use, building, or
other structure.
C.
Repair. Nothing in this article shall be deemed to prohibit work
on any nonconforming building or structure when required by law to
protect the public health or safety, provided that such work does
not increase the nonconformity. Nothing in this article shall prohibit
ordinary repair and maintenance of a nonconforming building or structure
or replacement of existing materials with similar materials or materials
of higher quality.
D.
Special use permits and site plans. The lack of an approved special
use permit or site plan, as required for particular uses under this
chapter, shall not be deemed a nonconformity as to such lawfully existing
uses established prior to the effective date of this chapter.
Nothing in this chapter shall prevent the use of a nonconforming lot or the construction, enlargement, extension, or structural alteration of a building or other structure on such a lot, as defined in § 175-74, provided that all of the following standards and conditions are satisfied:
A.
The use, building, or other structure conforms to all other requirements
of this chapter, except that: 1) in the case of lots of 40,000 square
feet or less, the minimum side and rear setbacks shall be 20 feet
for the principal building and five feet for accessory structures
up to 150 square feet; and 2) in the case of lots between 40,000 square
feet and three acres, the minimum side and rear setback for the principal
building shall be 30 feet;
B.
If used for a dwelling, the lot contains a minimum area of 5,000
square feet;
C.
If the lot was nonconforming prior to May 5, 2011, the lot owner
does not own sufficient contiguous land to make a conforming lot under
the Zoning Law as it existed immediately prior to the adoption of
this chapter, pursuant to § 175-88C of such prior law;[1] and
[1]
Editor's Note: Former § 175-88C of the prior zoning law
stated "The owner of the lot shall not own sufficient contiguous land
to make a conforming lot."
D.
The lot has access to a Town, county, or state highway, or to a private
road or open development area common driveway that meets applicable
Town specifications.
Unless otherwise specifically provided in this chapter, nothing
in this chapter shall require any change in the use of any land, buildings,
or other structures for which a valid certificate of occupancy has
been issued by the Zoning Administrative Officer. Nothing in this
chapter shall require any change in the plans, construction, or use
of any land, buildings, or other structures for which any required
building permit has been lawfully issued and an application for a
certificate of occupancy lawfully approved by the Zoning Administrative
Officer under this chapter as it may be amended from time to time.
If an amendment to this chapter renders such permit and/or application
nonconforming, actual construction begun in good faith prior to the
effective date of such amendment may continue, provided that it is
diligently completed within two years following the date of such amendment.
The term "actual construction begun" means that construction materials
have been placed in a permanent position fastened permanently to the
ground, as authorized by such permit and/or application. A use or
structure which is not completed within this two-year period shall
be deemed a violation of this chapter.
The Planning Board may grant site plan approval for the construction,
reconstruction, enlargement, extension, moving, and/or structural
alteration of buildings and structures on a lot where existing site
development, whether or not the subject of the application, fails
to conform to the standards of this chapter, provided that the Planning
Board finds that the following standards are met:
A.
The proposed construction will result in a general improvement of
the lot with regard to safe access, sight lines along the street,
suitable drainage, architectural quality, and adequate landscaping.
B.
Nonconforming signs and lighting will be brought into a conforming
or more nearly conforming condition.
C.
Landscaping will be improved within the required setback area adjoining
a residential district boundary line.
D.
There will be no increase in any nonconformity.
