A.
Purpose.
(1)
It is the purpose of this article to recognize that if, prior to
the adoption of the original Dalton Borough Zoning Ordinance, as amended,
reenacted and replaced, property was used for a then-lawful purpose
or in a then-lawful manner which the Zoning Ordinance 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 Borough from regulating the change, alteration, reconstruction,
reestablishment, extension, destruction and abandonment of nonconforming
uses in accord with the Pennsylvania Municipalities Planning Code[1] and general case law.
[1]
Editor's Note: See 53 P.S. § 10101 et seq.
(2)
It is also the purpose of this article 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 article to prescribe those standards
which are to be applied by the Borough 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, reenacted and replaced, or which are recognized by § 400-49 or 400-50 of this Article IX. Any lot, structure or use created, constructed or established after the effective date of the original Zoning Ordinance, 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.
C.
Registration. It shall be the responsibility of the party asserting
a nonconformity to provide the evidence that the nonconformity is
legal. A property owner may request a written statement of nonconformity
from the Zoning Officer after providing sufficient evidence. The Zoning
Officer may submit any application for a certificate of nonconformance
to the Planning Commission for the Commission's review and recommendation
with regard to the evidence of nonconformity.[2]
D.
Continuation and change. A lawful nonconforming lot, structure or
use as defined by this chapter may be continued and may be sold and
be continued by new owners. Any expansion, alteration, extension or
change in a nonconformity shall only proceed in compliance with this
article.
As used in this chapter, the following terms shall have the
meanings indicated:
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 Lackawanna County Recorder of Deeds prior to the effective
date of the original Dalton Borough Zoning Ordinance, as amended,
reenacted and replaced.
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 Dalton Borough Zoning Ordinance, as amended, reenacted
and replaced, and including, but not limited to, nonconforming signs.
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.
The rebuilding of a nonconforming structure damaged or destroyed
by casualty to the exact or less nonconforming condition which existed
prior to the casualty.
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 Dalton Borough Zoning Ordinance, as amended, reenacted
and replaced.
The conversion of a nonconforming use to a different use
classification as enumerated on the Schedule of Uses of this chapter.
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.
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, legally permitted, planned and substantially under construction in compliance with existing ordinances 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, is 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.
Conditional uses. All changes of nonconforming uses shall be considered conditional uses subject to the specific procedures and review criteria contained in Article XII of this chapter and the review factors in § 400-58 of this article. 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 Commission and Borough Council in accord with classification of the uses in the Schedule of Uses of this chapter. 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 this chapter to eliminate incompatible uses from specific zoning districts. For example, a change from a nonconforming retail store in R-1 District to a bank may be permitted; however, a change to a manufacturing use would not be permitted.[1]
B.
Conforming changes and conversions.
(1)
Change. A change in a nonconforming use to a conforming use shall
not be considered a conditional use unless the proposed use is classified
as a conditional use by the Schedule of Uses in this chapter. A change
of a nonconforming use to a conforming use shall be considered an
abandonment of the nonconforming use, which shall not thereafter revert
to a nonconforming use.
(2)
Conversion. The conversion of a nonconforming use to a nonconforming
use of like classification shall not be considered a conditional 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.
Conditional uses. All extensions of nonconforming uses into more area of a structure or onto more area of a property shall be considered conditional uses subject to the specific procedures and review criteria contained in Article XII of this chapter and the review factors in § 400-58 of this article.
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.
Extension limitation. A nonconforming use shall not be extended more
than 25% beyond the area of land or structure legally occupied by
the use as it existed at the time of the adoption of the initial Dalton
Borough Zoning Ordinance.
D.
Prohibited extensions. Should the use proposed for extension be judged
by the Borough 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 Council shall consider
past operating performance in making its decision.
A.
Time limit. If any nonconforming structure or use is damaged it may
be restored or reconstructed to its preexisting condition of nonconformity,
provided the application for a building permit is submitted within
24 months of the date of the casualty.
C.
Razing; removal. If any nonconforming structure or part of such structure
is razed or removed, its nonconformity it shall be replaced only in
full conformity with this chapter.
Unless extended in accord with this § 400-55, if a nonconforming use of land or structure ceases operations, is discontinued, is vacated or is otherwise abandoned for a period of 12 months or more, then this shall be deemed to be an intent to abandon 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. The Zoning Officer may notify in writing the title owner of the land and/or structure that the twelve-month period has expired. A change of a nonconforming use to a conforming use shall be considered an abandonment of the nonconforming use, which shall not thereafter revert to a nonconforming use.
A.
Alterations. The alteration or expansion of nonconforming structures shall be permitted only in accord with this § 400-56.
B.
Procedure – permits. All applicable permits for the alteration or expansion of a nonconforming structure shall be required. Such alteration or expansion shall be considered a conditional use if the alteration or expansion involves a change or extension of a nonconforming use as regulated by §§ 400-52 and 400-53 of this chapter, respectively.
C.
Nonconforming setbacks. Should a single- or two-family dwelling have
a lawful nonconforming front, side or rear building setback, the structure
may be altered to increase the height above such setback or to extend
other portions of the building up to such nonconforming setback but
not to exceed a distance of 50% of the existing nonconforming part
of the structure. However, the height of any such extension shall
not exceed the lesser of the existing height of the nonconforming
structure or the applicable district maximum height.
D.
Increase in area or bulk nonconformity. In the case where a proposed
alteration or expansion of a nonconforming structure will result in
an increased nonconformity of setback, height, lot coverage or other
area or bulk standard, a variance shall be required from the Zoning
Hearing Board.
A.
Single-family dwelling. A single-family dwelling may be erected or
expanded on any lawful nonconforming lot of record in any district,
provided:
(1)
Adjoining property. The lot owner does not own adjoining property
all or part of which can be combined to make the lot more conforming.
(2)
Setbacks. Setbacks may be reduced in the same proportion as the ratio
of the nonconforming lot size to the lot size required for the district,
provided no front yard is reduced to less than 20 feet and no side
or rear yard is reduced to less than 10 feet.
(3)
Other standards. All other applicable standards in this chapter are
satisfied.
(4)
Water supply. An adequate water supply is provided in accord with
Borough and other applicable regulations.
(5)
Sewage disposal. Sewage disposal is provided in accord with applicable
Borough and PA DEP requirements.
B.
Commercial uses. A commercial use may be developed on any lawfully
existing nonconforming lot where permitted by the Schedule of Uses,
provided:
(1)
Adjoining property. The lot owner does not own adjoining property
all or part of which can be combined to make the lot more conforming.
(2)
Setbacks. All setbacks normally required in the district are maintained.
(3)
Lot size requirement. This chapter does not require a lot size for
the specific use which is greater than the lot size for the district.
(4)
Water supply. An adequate water supply is provided in accord with
Borough and other applicable regulations.
(5)
Other standards. All other applicable standards in this chapter are
satisfied.
(6)
Sewage disposal. Sewage disposal is provided in accord with applicable
Borough and PA DEP requirements.
In addition to other applicable standards, the Borough shall
consider any nonconformity conditional-use application in terms of
the effect on the following factors:
A.
Traffic generation.
B.
Noise, dust, fumes, gases, odor, glare, vibration, fire and explosion
hazards and other nuisances.
C.
Amount and nature of outdoor storage.
D.
Hours of operation.
E.
Compatibility with the character of the surrounding neighborhood.
F.
Potential of the expansion to reduce existing congestion and alleviate
parking shortages by improved site design, addition of parking and
improved loading areas.
