Any legally established principal or accessory use, building,
improvement or lot not in compliance with the provisions of this chapter
or subsequent amendments shall be regarded as a nonconforming element
subject to the following provisions:
A. Modifications. Any modification of a nonconforming element including
any addition, enlargement, alteration, structural alteration or change
in use shall be subject to the provisions of this section.
B. A nonconforming building is a preexisting principal or accessory
structure that does not comply with applicable yard, setback, height,
lot coverage or similar dimensional requirements.
(1) General maintenance and repair. Except as otherwise provided for
in this section, nonconforming buildings may continue to exist, be
maintained and repaired.
(2) Structural alterations, renovations and additions. Alterations, renovations
and additions to a nonconforming building may be made upon issuance
of a building permit; provided, however, that these modifications
do not increase the degree of a nonconforming element or expand a
nonconforming use that may be related to the structure. For example,
an increase in the degree of nonconformity includes an addition to
or enclosure of a porch that protrudes into a required yard; conversely
a conforming addition in the rear yard would not affect a front yard
nonconformity. For purposes of enforcement, any modifications that
increase the degree of nonconformity shall be subject to an area variance
by the Zoning Board of Appeals.
(3) Damaged structures. A nonconforming building may be repaired and
restored to its former condition except where damage or deterioration
involves more than 50% of the floor area or exceeds 50% of the total
replacement cost of the damaged structure as determined by a licensed
adjuster, appraiser or other legal representative of the insuring
company. If, however, a discrete portion of a structure (such as a
porch, vestibule, garage, etc.) is the sole basis for the nonconformity
and only that portion is damaged more than 50% of its floor area,
then it may be repaired or restored upon issuance of a special permit
by the Zoning Board of Appeals.
C. A nonconforming use is a legally preexisting activity or land use
occurring on or associated with a structure or site and is not permitted
by building or zoning permit, site plan review or a special permit
approval in the applicable zone district. A nonconforming use may
be found to occur in conforming structures.
(1) Except as otherwise provided in this article, nonconforming uses
may continue to exist.
(2) A nonconforming use may not be enlarged to occupy additional floor
area within an existing structure or additional lot space, nor be
converted to another use except in conformance with this chapter.
For purposes of enforcement, any such proposed modification or enlargement
of a nonconforming use shall be subject to approval of a variance
from the Zoning Board of Appeals.
(3) A nonconforming use may be changed to another nonconforming use of
the same or comparable land use classification only upon issuance
of a special permit by the Zoning Board of Appeals and upon finding
that the proposed use will have a lesser impact on surrounding properties
than the existing use. In its determination, the Zoning Board of Appeals
shall consider parking demand, pedestrian and traffic volume, intensity
of use, hours of activity, noise levels and any other factors considered
relevant under the circumstances.
(4) A nonconforming use, if changed to a conforming use, shall not thereafter
be changed back to a nonconforming use.
(5) The provisions of Subsection
B above regarding repair and restoration of damaged structures shall apply to conforming buildings containing a nonconforming use.
(6) Any previously established permitted use now subject to the site
plan review or special permit requirements of this chapter shall be
regarded as nonconforming use if it does not comply with the current
site plan review or special permit requirements.
(7) A nonconforming use of a building or land which has ceased operation
for 12 months shall be deemed abandoned and may not be reestablished
as a nonconforming use, and after that such structure or land or portion
of it shall be used in conformity with this chapter. If upon a finding
by the Zoning Board of Appeals that a nonconforming use occupies a
building uniquely designed for its use (e.g., two-family dwelling)
then a nonconforming use may be reestablished within 24 months.
D. A nonconforming lot is a parcel of land legally established pursuant to the Town's Subdivision Regulations (Chapter
224) but does not meet the current dimensional requirements for lot width, depth or area, if any, of the applicable zone district regulations. Lots established without Town subdivision approval are considered legal if they were filed and recorded in the Office of the Oneida County Clerk prior to the date of the enactment of this chapter by the Town Board and conformed to the zoning requirements in effect at the time of filing. A nonconforming lot in any district may be improved with a permitted site plan review or special permit use if all applicable setbacks, yards, dimensional, parking, and/or screening requirements are met.
E. Other nonconforming elements.
(1) Parking. No modification of a building (whether an addition or an
internal renovation) which increases the floor area devoted to an
otherwise conforming use shall be made if such modification increases
the degree of nonconformity with respect to off-street parking requirements.
New York State law and this chapter establish that certain land
development activities require review and approval by the Town Board,
Planning Board or Zoning Board of Appeals. This article applies to
all boards that have the authority to issue approvals for site plan
reviews, special permits or variances. The type of review (site plan
or special permit) and the reviewing board for land development activities
is specified in the zone district or supplemental regulations of this
chapter. Variances are issued by the Zoning Board of Appeals.
A. Standard review procedures for all boards.
(1) Conceptual review. An applicant may request an informal review of
a proposed concept prior to formal submission. Such reviews will be
scheduled at the convenience of the reviewing board and summarized
in the Board minutes. Conceptual reviews are intended to assist the
applicant and reviewing board in identifying important issues that
may arise. Conceptual reviews are advisory.
(2) Codes compliance. Prior to or concurrent with filing a formal application, the applicant shall submit a copy of the proposal with supporting documentation to the Town Code Enforcement Officer for a preliminary and advisory evaluation of compliance with the New York State Fire Prevention and Building Code and any other applicable Town, county, state or federal codes. The Code Enforcement Officer shall report the findings of this evaluation to the reviewing board, as required in Subsection
A(7) below and shall report any potential areas of noncompliance. The reviewing board may require the applicant to state if any waivers of the New York State code or Town requirements are to be sought or identify alternatives to resolve the areas of noncompliance.
(3) Filing.
(a)
At least 10 days prior to a regularly scheduled Board meeting the applicant shall submit all documents required in §
262-35D, to the Town Code Enforcement Officer/Town, Zoning, and Planning Board Secretaries/Town Clerk.
(b)
The Code Enforcement Officer will record the date of filing,
establish an official file, include the proposal on the Board agenda
and distribute copies of the proposal to the following: Board members,
Board Attorney and Town Engineer.
(4) Determination of completeness and official submission date (typically
meeting No. 1).
(a)
The reviewing board at its regular meeting shall:
[1]
Review the required submission documents.
[2]
Determine that all materials have been provided pursuant to
the chapter and determine that the information is clear and satisfactorily
presented so that it may be properly evaluated.
(b)
Pursuant to State Environmental Quality Review (SEQR), the reviewing
board shall review the environmental assessment forms, determine the
type of action (Type I, Unlisted), identify other involved agencies
and establish a lead agency for purposes of SEQR. If the reviewing
board is the lead agency, it shall evaluate the environmental assessment
forms and make a determination of significance. If the reviewing board
is not lead agency, then it shall assist the lead agency, to the extent
practical, in making the determination of significance.
(c)
When the reviewing board, pursuant to this chapter or its Rules
of Procedure, has accepted the proposed submission and SEQR materials
as complete, it will instruct the Board Secretary to record the date
of board acceptance as the official submission date of the proposal.
The proposed submission materials shall not be accepted as complete
until the lead agency has, pursuant to SEQR, either made a negative
declaration or has received and accepted for scope and content a draft
environmental impact statement (DEIS).
(d)
Upon acceptance, the reviewing board shall schedule a public
hearing and/or formal review of the proposal and authorize transmittal
of all referrals.
(5) Public hearing and notice.
(a)
A public hearing, when required by New York State Town Law,
shall be scheduled by the reviewing board following establishment
of the official submission date of the proposal.
[1]
The Zoning Board of Appeals will hold a public hearing within
a reasonable period after the official submission date; nonsubstantial
modifications do not require a public hearing. When practical, the
public hearing shall be held within 31 days of the official submission
date.
[2]
The Planning Board is not required to hold a public hearing
for site plan reviews; it must hold a public hearing for special permit
proposals. If the Planning Board is required to or decides to hold
a public hearing, it must be within 62 days of the official submission
date.
(b)
A reviewing board may hold a public hearing on any matter before
it, even when not required by New York State law or this chapter,
if it finds that public comment would facilitate its review.
(c)
Not less than 10 days prior to a required or optional public
hearing, the reviewing board shall publish a public notice in the
official newspaper designated by the Town Board (and, optional, mail
copies of the public notice to affected and adjacent property owners
and/or require a sign to be posted on the site describing the proposal).
(d)
The reviewing board shall conduct the public hearing pursuant
to this chapter or its Rules of Procedure and applicable provisions
of law. If applicable and to the extent practical, the public hearing
on the proposal may be held concurrently with any public hearings
that may be held pursuant to SEQR. The public hearing shall be closed
when the reviewing board is satisfied that it has received adequate
public input and when comments from advisory or mandatory referrals
have been received, unless the allotted review time for the referrals
has expired.
(6) Referrals. Referrals to other agencies shall be made by the reviewing
board after the official submission date is established. To the extent
practical, the reviewing board will ensure that referrals are completed
within the time prior to a public hearing, if held.
(a)
Sections 239-1 and 239-m referral. The Board shall refer a copy
of the proposal to the Oneida County Department of Planning when a
proposal is under County Planning Board jurisdiction established by
New York State General Municipal Law §§ 239-1 and 239-m.
(b)
Advisory referrals. Following the official submission date,
the reviewing board may send special notification or copies of the
proposal to other agencies which may have a separate approval of the
proposed development or which may contribute to the Board's evaluation.
Unless otherwise provided, all advisory referrals should be completed
in 30 days and should be in written form. In the event an agency fails
to respond in a timely manner, the reviewing board may proceed without
such advisory comments.
(7) Evaluation of the site plan and documents (typically meeting No.
2).
(a)
The reviewing board shall study the proposal in accordance with
its applicable standards of review in a public meeting(s). The public
hearing(s), if any, may be part of these meetings.
(b)
The Codes Enforcement Officer shall report to the Board on the
compliance of the proposal to applicable requirements of the New York
State Uniform Fire Prevention and Building Code and the Town Zoning
Ordinance, Town Subdivision Regulations and any other Town codes.
(c)
The applicant and/or professional representatives shall be available
for questions or comments during the meetings when the proposal is
to be discussed.
(8) Decision (typically Meeting No. 2 or No. 3).
(a)
The Zoning Board of Appeals shall render a decision to approve,
approve with modifications or disapprove a proposal within 62 days
after the public hearing as required by New York State Town Law.
(b)
The Planning Board shall render a decision to approve, approve
with modification or disapprove a proposal within 62 days of the official
submission date or after the public hearing, if held, as required
by New York State Town Law.
(c)
Referrals and SEQR.
[1]
If County Planning Board referral is required, the reviewing
board shall act consistent with the requirements of New York State
General Municipal Law § 239-m.
[2]
If a draft environmental impact statement (DEIS) has been required,
the Board shall not act until a final EIS and a findings statement
has been prepared and adopted pursuant to SEQR. When possible, the
Board may adopt the findings statement concurrent with its decision
on the proposal.
(d)
The reviewing board decision shall be a written resolution adopted
pursuant to this chapter or its Rules of Procedure, recorded in the
Board minutes, the official file of the proposal, and in the offices
of the Town Clerk.
[1]
The resolution shall summarize the reviewing board's evaluation
and findings and specify any modifications or conditions to be imposed
upon the proposal.
[2]
The reviewing board may require modifications to the project
site plan and establish conditions for its approval upon findings
that such modifications or conditions are necessary to improve compatibility
within the neighborhood, enhance provision of public services, minimize
adverse impacts upon the site or environmental resources, and address
other concerns raised from the advisory referrals or from the public
comments.
(9) Building or occupancy permits.
(a)
Within one year of approval of a variance, special permit or
site plan review, the applicant will apply for and obtain all necessary
building, occupancy or other Town approvals necessary to use, enlarge,
alter or change a property in conformance with the conditions or modifications,
if any, specified in the Board resolution.
(b)
No Town permits or approvals shall be issued after one year,
unless the reviewing board has granted an extension.
(10)
Extension of review schedule or project approval.
(a)
The schedule of board review may be extended upon mutual consent
of the applicant and the reviewing board.
(b)
For variances, special permits and site plans, the reviewing
board may grant the applicant not more than two one-year extensions
to obtain a building permit or certificate of occupancy. If the applicant
fails to obtain the necessary permits or approvals within the allotted
time, the proposal must be reviewed and considered as a new application.
B. Modification to approved uses or structures. This section establishes standards of review for changes to a site that has been previously granted site plan, variance or special permit approval. No board review is required for changes within the standards of Subsection
B(1) below; however, the applicant will be responsible for building, occupancy or similar permits which may be necessary. Subsection
B(2) establishes standards for other minor changes which must be approved, pursuant to Subsection
C by the original reviewing board, or the Board with current review authority. Any change exceeding the standards of Subsection
B(1) and
(2) shall be considered a substantial modification and must be approved as a new proposal pursuant to Subsection
A of this section.
(1) Nonsubstantial modification: no board review. The following changes
or modifications to an approved variance, special permit or site plan
do not require board review when found by the Code Enforcement Officer
to comply with the following:
(a)
Dangerous condition. Removal or repair of a dangerous condition
determined by an enforcement agency that circumstances exist which,
if not corrected, contribute a threat to life, health or safety of
the general public or such other persons for whose protection such
regulations were intended. Such determination may be verbal or in
writing. The term "enforcement agency" shall refer to any public agency
or official having jurisdiction to issue orders affecting the life,
health and safety of persons within the Town.
(b)
Principal and accessory structures. Routine repair, replacement
or maintenance of electrical or mechanical installations, or of damaged
or worn parts or surfaces, including repainting, facade repair and
roof replacements.
(c)
Ownership. Changes in ownership or management of an establishment,
excluding a home occupation, which does not change the use of the
property.
(d)
Lot dimensions. Any change or modification in title due to condemnation,
if it does not substantially affect the approved site plan.
(e)
Parking. Replacement or repair of existing pavement or painting
of driveway and parking areas without altering the approved traffic
pattern.
(f)
Landscaping. Routine landscaping and plant replacement, establishment
of new landscaped areas without altering the approved vehicular or
pedestrian circulation and parking patterns; such changes should be
consistent with any applicable controls in the approved plan concerning
height, location, and visibility.
(g)
Screening devices. Repair or replacement, in kind, of existing
screening devices.
(h)
Signs. Repair or replacement, in kind, of existing signs, including
changes in text.
(2) Minor modification; minor board review. At any time during the conduct of a minor review, the reviewing board may determine the proposed modification(s) to be substantial and require a major review of the proposal. Any change or modification exceeding the standards of Subsection
B(1) shall be subject to a minor review if the proposal meets the following conditions:
(a)
Principal and accessory structures. Changes to interior floor
plans which do not expand the area of the principal building or result
in any increase in required parking or loading.
(b)
Uses. Change to a similar land use, change of the operation
of the approved use, or change of the approval conditions which does
not expand the area of the principal building, increase the required
parking or loading space, or substantially increase the intensity
of the use; this provision specifically excludes properties subject
to use variances.
(c)
Lot dimensions. A subdivision of the site in conformance with
the Town's subdivision regulations without altering the approved site
plan of the use.
(d)
Parking. Altering the layout of approved parking and loading
areas without reducing the number of required spaces or changing the
number, location and design of any driveways.
(e)
Landscaping. Reduction in an approved landscaped area for altered
parking, additional storage area or to alter drainage or snow storage
capacity.
(f)
Screening devices. Changes in the size, composition or location
of any required screening devices.
(g)
Signs. Change in the size, location or number of approved signs
without increasing the approved total sign area.
(3) Substantial modification; major board review. Any change or modification determined by the Code Enforcement Officer or the reviewing board to exceed or not be applicable to Subsection
B(1) and
(2) shall be subject to review as a new proposal pursuant to Subsection
A of this section.
C. Procedures and submissions for minor modifications.
(1) The applicant shall submit to the reviewing board written and/or
site plan materials adequately describing the nature of the proposed
modification at least five days prior to a regular meeting. The reviewing
board shall normally be the board that originally issued the project
approval unless the review authority has been transferred to a different
board.
(2) The reviewing board shall evaluate the nature and extent of the proposed
modifications in its regular meeting; a public hearing is not required.
(3) Upon finding that the proposed modifications are minor, the reviewing
board shall act to approve, approve with modifications or disapprove
the request.
(4) Copies of the approved modifications shall be filed in the original
official file and transmitted to the applicant.
D. Submissions. The following shall be submitted for all proposed variances,
special permits and controlled site reviews:
(1) Survey showing property boundaries, existing buildings, and location
and dimensions of easements and rights-of-way.
(2) Existing site conditions plan may be prepared on a photocopy of the
survey or on a plan comparable to proposed site plan showing buildings
with dimensions and purpose, driveways, pavement areas, major trees
with a circumference greater than six inches, contour elevations at
no less than one-foot and not more than five-foot intervals, signs
and any other improvements.
(3) Proposed site plan. An original plan for the property at a scale
of not less than one inch equals 20 feet and not more than one inch
equals 100 feet showing all proposed changes to existing conditions,
including any new buildings or improvements and contour changes. The
site plan shall also include details for water supply and wastewater
disposal, surface drainage, solid waste disposal, utility connection,
fire hydrant locations; the plan shall also indicate location of driveways,
parking, loading areas and paved pedestrian areas.
(4) Improvement plans. The following detailed plans shall be submitted
if deemed necessary by the board to supplement the proposed site plan
and will be submitted at a scale identical to the site plan unless
otherwise specified by the board.
(a)
Architectural plans shall include floor plans and building elevations
indicating building dimensions, interior use(s) and type of construction
materials.
(b)
Engineering plans shall include construction details on drainage,
sewer and water systems, lighting and any mechanical or utility improvements
to serve the site.
(c)
Landscaping plans shall include details on type, composition
and location of paving material; location, size and types of signage;
location, number and type of plantings and fencing.
(5) Written information shall describe the proposed use(s), anticipated
traffic volumes and parking and loading needs, anticipated construction
and occupancy schedule, construction phase management of the site,
including erosion control, equipment storage, and security arrangements.
(6) SEQR information shall be on forms provided by the Town; the board
may, upon review, require a draft environmental impact statement (DEIS).
(7) Permits or approvals from other agencies for the proposed development
shall be identified with the anticipated schedule of application.
(8) Supplemental information. Upon review of the submissions the board
may require information to be provided in greater detail or to submit
additional material.
(9) Fees will be required according to the schedule established by the
Town Board.