A.
Purpose.
(1)
It is the purpose of this article to recognize that if, prior to
the adoption of the original Town of Delaware Zoning Law, as amended,
reenacted and replaced, property was used for a then lawful purpose
or in a then lawful manner which the Zoning Law would render thereafter
prohibited and nonconforming, such property is generally held to have
acquired a vested right to continue such nonconforming use or nonconforming
structure. Nevertheless, this does not preclude the Town from regulating
the change, alteration, reconstruction, reestablishment, extension,
destruction and abandonment of nonconforming uses in accord with New
York State Town Law and general case law.
(2)
The purpose of this section is to limit the injurious impact of nonconforming
uses and/or structures on other adjacent properties within a particular
district and the community as a whole, while recognizing that the
change, alteration, reconstruction, reestablishment or extension of
nonconforming uses and/or structures may not be contrary to the public
interest or the general purpose of this chapter when failure to allow
such change, alteration, reconstruction, reestablishment or extension
would itself lead to neighborhood or district deterioration.
(3)
It is further the purpose of this section to prescribe those standards
which are to be applied by the Town in determining the reasonableness
of a proposal to change, alter, reconstruct, reestablish or extend
a nonconforming use. The following are regulations which shall apply.
B.
Applicability. The provisions and protections of this Article IX shall apply only to those nonconforming lots, structures and uses which legally preexisted the applicable provisions of this chapter, as amended, or which are recognized by § 220-53 or 220-54 of this Article IX. Any lot, structure or use created, constructed or established after the effective date of the original Zoning Law, as amended, reenacted and replaced, which does not conform to the applicable requirements, shall be considered an illegal lot, structure or use subject to the penalties prescribed by this chapter, and the said lot, structure or use shall not be entitled to any of the protections afforded to legal, preexisting nonconforming lots, structures or uses.
A.
Nonconforming lot. Any lot which does not conform with the minimum
width, depth and area dimensions specified for the district where
such a lot is situated, such lot having been created and recorded
in the office of the Sullivan County Clerk prior to the effective
date of the original Town of Delaware Zoning Law, as amended, reenacted
and replaced.
B.
Nonconforming structure. A structure or part of a structure which
does not comply with the applicable district limitations on structure
size and location on a lot, where such structure lawfully existed
prior to the enactment of the original Town of Delaware Zoning Law,
as amended, reenacted and replaced, and including, but not limited
to, nonconforming signs.
C.
Nonconforming structure, alteration. As applied to a nonconforming
structure, a change or rearrangement in the structural parts or in
the existing facilities, or an enlargement, whether by extending on
a side or by increasing in height, or the moving from one location
or position to another.
D.
Nonconforming structure, reconstruction. The rebuilding of a nonconforming
structure damaged or destroyed by casualty to the exact or less nonconforming
condition which existed prior to the casualty.
E.
Nonconforming use. A use, whether of land or of a structure, which
does not comply with the applicable use provisions in this chapter
or amendments hereto, where such use was lawfully in existence prior
to the enactment of the original Town of Delaware Zoning Law, as amended,
reenacted and replaced.
G.
Nonconforming use, extension. The expansion of a nonconforming use
throughout the structure which the said use partially occupies or
the expansion of a nonconforming use onto property not already occupied
by the said use.
H.
Nonconforming use, reestablishment. The reopening or reinstitution
of a nonconforming use which has been discontinued by the owner of
the said use; such reopening effected prior to the abandonment of
the nonconforming use as determined under the provisions of this chapter.
For the purposes of this Article IX, a building, structure or use, planned and substantially under construction in compliance with existing laws prior to the effective date of this chapter, or any amendment hereto, and completed within a one-year period after the effective date of this chapter or amendment hereto, shall be considered nonconforming.
A building, structure or use allowed by variance in a district
where it is nonconforming with any regulations of this chapter, as
amended, reenacted and replaced, shall be considered nonconforming
for the purposes of this chapter.
Normal maintenance and repair, such as painting, replacement
of siding, and similar activities, are allowed, as well as those interior
renovations which do not structurally alter the building or area,
or result in increased use of the building or area, or a change of
nonconforming, or otherwise create more incompatibility with the surrounding
permitted uses. Such maintenance and repair activities shall, however,
comply with all other applicable standards and permit requirements
of this chapter.
A.
Special uses. All changes of nonconforming uses shall be considered special uses subject to the specific procedures and review criteria contained in Article VIII of this chapter, including requirements for building permits. A nonconforming use may only be changed to a use of equal or less nonconformity (i.e., more restrictive classification), as determined by the Planning Board in accord with classification of the uses in the Schedule of District Regulations, § 220-9 of this chapter.[1] The general standard shall be that no change of a nonconforming
use shall be permitted if such change will result in the establishment
of a use which is materially different from the existing use in terms
of negative effects on the community and the long-term application
of the Zoning Law to eliminate incompatible uses from specific zoning
districts. For example, a change from a nonconforming retail store
in the R-1 District to a bank may be permitted; however, a change
to a manufacturing use would not be permitted.
[1]
Editor's Note: The Schedule of District Regulations is included
as an attachment to this chapter.
B.
Conforming changes and conversions.
(1)
A change in a nonconforming use to a conforming use shall not be
considered a special use unless the proposed use is classified as
a special use by the Schedule of District Regulations.[2] A change of a nonconforming use to a conforming use shall
be considered an abandonment of the nonconforming use, which shall
not thereafter be reestablished.
[2]
Editor's Note: The Schedule of District Regulations is included
as an attachment to this chapter.
(2)
The conversion of a nonconforming use to a nonconforming use of like
classification shall not be considered a special use. For example,
a nonconforming retail establishment selling groceries proposed for
conversion to a shoe store would not be considered a change in nonconforming
use.
C.
Other standards. All changes to nonconforming uses shall also be
subject to all other applicable standards in this chapter.
A.
Special uses. All extensions of nonconforming uses shall be considered special uses, subject to the specific procedures and review criteria contained in Article VIII of this chapter, including requirements for building permits.
B.
Extension onto other properties of record in the same ownership.
A nonconforming use may only be extended onto a new property of record
if that property is contiguous to the existing location; the properties
were both under the same ownership as of the effective date of this
chapter, as amended; the owner has clearly exhausted the alternatives
available for expansion on the existing property; and the use is not
one which has been altogether prohibited as a new use under this chapter.
C.
Prohibited extensions. Should the use proposed for extension be one
which is specifically prohibited as a new use in the Town or is a
use judged by the Planning Board to be one similar to such a use or
of such a nature as to impose health, safety or welfare concerns which
cannot be satisfied by the imposition of the conditions permitted
under this chapter, the requested extension shall be denied. The Board
shall consider past operating performance in making its decision.
D.
Other standards. All changes to nonconforming uses shall also be
subject to all other applicable standards in this chapter.
A.
Time limit. If any nonconforming structure or use is damaged or destroyed
as a result of a casualty, it may be restored or reconstructed to
its preexisting condition of nonconformity within 18 months of the
date of the casualty. The Building Inspector may, upon written application
by the owner of the structure, grant a one-year extension for just
cause demonstrated by the owner.
A.
Use abandoned. Unless extended in accord with this § 220-59, if a nonconforming use of land or structure ceases operation, is discontinued or is vacated for a period of 12 month or more, then this shall constitute an abandonment of such nonconforming use, and any subsequent use of the land or structure shall be for conforming purposes only, and said use shall in all respects conform to the applicable provisions of this chapter.
B.
Abandonment. A nonconforming use shall be considered abandoned when,
among other circumstances:
(1)
Intent. The intent of the owner to discontinue the use is apparent
by the posting of signs, boarding of windows, or failure to pay taxes
or assessments due, or similar actions or lack thereof;
(2)
Equipment and furnishings. The equipment and furnishings used in
furtherance of the nonconforming use have been removed from the premises;
(3)
Use replaced. The nonconforming use has been replaced by a conforming
use or changed to another use under permit by the Town;
(4)
Maintenance. The structure and/or premises is not maintained in a
manner consistent with applicable local and state building and property
maintenance codes; or
(5)
Occupancy. The building is not occupied for a period of one year.
C.
Extension. The Building Inspector may, upon review and recommendation
by the Planning Board and for good cause shown by the applicant, grant
an extension of not more than one year for the continuation of the
nonconforming use.
A.
Alterations. The alteration of nonconforming structures shall be permitted in accord with this § 220-60.
C.
Increase in area or bulk nonconformity. In the case where a proposed
alteration of a nonconforming structure will result in an increased
nonconformity of setback, height, lot coverage or other area or bulk
standard, an area variance shall be required from the Zoning Board
of Appeals.
D.
Other standards. All changes to nonconforming uses shall also be
subject to all other applicable standards in this chapter.
A.
Single-family dwelling. A single-family dwelling may be erected on
any nonconforming lot of record in any district, provided:
(1)
Side and rear yards. No side or rear yard setbacks are reduced to
less than 50% of the requirement for the district in which the lot
is located, but in no case less than 10 feet.
(2)
Front yard. The required front yard setback is maintained as required
for the district in which the lot is located.
(3)
Other standards. All other applicable standards in this chapter are
satisfied.
(4)
Sewage disposal. A sewage disposal system is provided in accord with
applicable Town and New York State requirements.
B.
Commercial uses. A commercial use may be developed on any existing
lot of record where permitted by the Schedule of District Regulations,
provided:[1]
(1)
Adjoining property. The lot owner does not own adjoining property
which can be combined to make the lot conforming.
(2)
Setbacks. All setbacks normally required in the district are maintained.
(3)
Lot size requirement. This chapter does not require an increased
lot size for the specific use.
(4)
Other standards. All other applicable standards in this chapter are
satisfied.
(5)
Sewage disposal. A sewage disposal system is provided in accord with
applicable Town and New York State requirements.
[1]
Editor's Note: The Schedule of District Regulations is included
as an attachment to this chapter.
The Building Inspector shall, for purposes of establishing the
legality of an existing nonconforming use, issue a certificate of
nonconformance to any owner of a nonconforming structure or use who
so requests, provided there is sufficient evidence of the use's
legal existence prior to the effective date of those regulations to
which it is nonconforming. The Building Inspector may submit any application
for a certificate of nonconformance to the Planning Board for the
Board's review and recommendation with regard to the evidence
of nonconformity.
